State Central Authority and Thomas (No 2)

[2014] FamCA 196

FAMILY COURT OF AUSTRALIA

STATE CENTRAL AUTHORITY & THOMAS (NO. 2) [2014] FamCA 196

FAMILY LAW – CHILD ABDUCTION – Hague Convention – Independent Children’s Lawyer to be appointed

APPLICANT: State Central Authority

RESPONDENT: Ms Thomas

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 998 of 2013

DATE DELIVERED: 3 March 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 3 March 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

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 final hearing of this matter set down for 17 March 2014 at 10.00 am be vacated and in lieu thereof this matter be set down for final hearing on a date to be fixed with utmost priority following the completion of the forthcoming first instance proceedings in Austria.

2.That pursuant to Section 68L(2) of the Family Law Act 1975 the children S born … 2004 and M born … 2008 be separately represented AND IT IS REQUESTED that Victoria Legal Aid arrange such separate representation in such time as to:-

a)      Facilitate rights for access;

b)     Consider the appropriateness of a social science assessment; and

c)      Consider mediation.

3.That forthwith upon appointment by the said Victoria Legal Aid or otherwise the Independent Children’s Lawyer file a Notice of Address for Service.

4.That 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.

AND IT IS NOTED that the parties consent to me in my capacity as one of the Hague Network Judges for Australia contacting the Hague Network Judge in Austria to advise on the basis of the adjournment.

IT IS NOTED that publication of this judgment by this Court under the pseudonym State Central Authority & Thomas (No. 2) 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

ex tempore

1. This matter has been listed before me because a social science assessment of this family, which I understood was able to be undertaken and therefore ordered at the last hearing, cannot be done. I need to make that known to the parties and also to consider the future conduct of the matter and the timeliness of the final hearing date currently scheduled for 17 March 2014.

2. I am unable to say when a social science assessment can be undertaken so will leave that in abeyance for the time being.

3. It is common ground that the hearing of the first instance court in Austria, which is scheduled for 10 April 2014, may be determinative of whether the respondent mother can retain the children in Australia in the face of the application now brought by the State Central Authority, at the father’s behest, that the children be returned to Austria pursuant to the 1980 Convention (as it is implemented into Australian law). The hearing in Austria on 10 April could also lead to a further order of that court that there be a psychological assessment of the children and parents before that court can make any final determination about parenting arrangements. In any event, the Austrian court may reserve its decision so that no outcome may be known on 10 April.

4. The hearing before me on 17 March 2014 was to be the final hearing of the return application to which I have allocated four days. The respondent mother says an exception to return applies to this case and, if that is found to be so, that this court should exercise its discretion to refuse to return the children to Austria. First, the mother alleges that the father consented to her removal of the children from Austria prior to her removal of them. Second, the mother asserts that even if the court is not satisfied that the requesting parent consented, that he subsequently acquiesced to her retention of the children in Australia including doing so in open negotiations before the court in Austria.

5. On reflection, it seems to me almost inevitable that in the proceedings before me either the applicant State Central Authority or the respondent mother will seek to adduce evidence of the outcome of the hearing on 10 April 2014 or whenever those proceedings are concluded. If such an application is not made to me then it is likely to be made on an appeal from any determination which I may make without the benefit of evidence of the outcome of the new proceedings in Austria.

6. Today, neither party sought to argue that the hearing on 17 March was not premature in all of the circumstances of the case. However, the lawyer for the State Central Authority did refer to the lack of access between the requesting parent and the children as being most unsatisfactory.

7. I will vacate the hearing on 17 March 2014 and make provision for a listing as soon as possible after the resolution of proceedings in Austria. I am mindful that these return proceedings have dragged on for a long time in Australia but remind the parties that at various times the mother’s retention of the children in Australia has either been sanctioned by the competent court in Austria or has been under consideration by the court with the mother participating fully in those proceedings in Austria. It is a most unusual return case.

8. I raised with the parties the appointment of an Independent Children’s Lawyer. The lawyer for the State Central Authority did not argue against the appointment of an Independent Children’s Lawyer, she submitted that it is a matter for the court. Counsel for the respondent supported a request being made.

9. I am satisfied on the basis of exceptional circumstances that an Independent Children’s Lawyer ought to be appointed for the children.  The exceptional circumstances include contemporaneous proceedings in Austria and Australia and the relatively long time that the children have been in Australia with this court not having been able to dispose of the return application in anything like the time appropriate for a hot pursuit remedy.

10. Victoria Legal Aid has lawyers who are very experienced in the representation of children’s interests in Hague return matters. If Victoria Legal Aid accede to my request for the appointment of an Independent Children’s Lawyer, the immediate tasks to which I ask the Independent Children’s Lawyer to give early attention are:-

    a)The arrangements for face to face time to be spent between the father and the children as well as communication in the meantime. The father expected the children to visit Austria with the mother when she travels there for the hearing on 10 April however that is not going to occur. The mother says that she made no such commitment but she is nonetheless prepared to fund the father’s travel to Melbourne so that he can see the children here. The father is employed in the education industry in Austria and constrained to travel during school holidays only. Doing the best we could in court it appears that there are school holidays of 10 days duration which commence on 12 April and that the long summer school vacation period commences in the last week on June or the first week of July this year.

    b)Consider whether there should be a social science assessment.

    c)Consider the appropriateness or otherwise of mediation. The mother and father had mediation with Mr F in 2013 which did not resolve the matter. I am also informed that there are facilitated settlement discussions in the context of the Austrian proceedings in which each party makes known his/her position from which negotiations ensue. In Australia, specialist Hague mediation, with dual mediators, may be available through Victoria Legal Aid at no cost to the parents.  I mention this because I was informed at the last hearing that the main concern for the father is not so much that the children are living in Australia but that the mother may subsequently and unilaterally relocate the children to a country where the 1980 Convention has no application.

11. Finally, the parties agreed today that I can inform the Hague Network Judge in Austria of why the final hearing of the return application before me will not now take place until after the Austrian proceedings are determined.  I will do so.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 3 March 2014.

Associate: 

Date:  31 March 2014.