State Central Authority and Vaberseck

[2016] FamCA 333

FAMILY COURT OF AUSTRALIA

STATE CENTRAL AUTHORITY & VABERSECK [2016] FamCA 333

FAMILY LAW – Hague return application – procedure

APPLICANT: State Central Authority

RESPONDENT: Ms Vaberseck

FILE NUMBER: MLC 10955 of 2015

DATE DELIVERED: 18 April 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 18 April 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Becker

SOLICITOR FOR THE APPLICANT: Legal Services Branch, Department of Health and Human Services

COUNSEL FOR THE RESPONDENT: Mr Lethlean

SOLICITOR FOR THE RESPONDENT: SV Winter and Co

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Smith

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

Orders

So the orders that I make - the orders that I make in the matter of State Central Authority & Vaberseck are as follows:

1. Henceforth, the court obtain an interpreter for the mother for all court hearings and events.

2. The parties do all acts and things necessary to obtain – to select a single expert witness to give evidence in relation to Hungarian law and in particular:-

   (a)the ability of the father to prevent any form of prosecution or    punishment for the mother arising out of her removal of the child, B, from Hungary on or about 15 May 2015;

   (b)       the entitlement of the mother to remove the child from Hungary and     whether it constituted a breach of the rights of custody of the father         within the meaning of the 1980 convention.

3. And it’s noted that the parties consent and request that I make contact with the Hague network judge for Hungary to request the names of up to three appropriately qualified persons who could give evidence in this case as a single expert witness.

4. This matter will be set down for hearing on a date to be fixed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym SCA & Vaberseck 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 10955 of 2015

State Central Authority

Applicant

And

Ms Vaberseck

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

Ex Tempore

1. This matter comes before me as a mention following the release of a Regulation 26 report dated 4 April 2016 prepared by the registry in relation to the alleged intolerability for the child, B, who is five years old being returned to Hungary. The mother alleges that, if returned the child will be removed from her care as a consequence of criminal proceedings which she may face, and for which she may be subject to a period of incarceration.  The other matter dealt with in the report is the child’s objections, if any, to return to Hungary. 

2. In relation to the latter matter, the family report writer, unsurprisingly, says that the child is too young to have his views taken into account in the context of the autonomous international meaning of objections to return.  In relation to the intolerability of being removed from the mother, there is some mention in the report of the impact on the child developmentally of being removed from his primary carer.  I would expect that that will be elaborated upon in viva voce evidence in cross-examination.  I would be surprised if the outcome for the child being removed from the mother in the event that she returns to Hungary with him was considered favourable. 

3. The parties had three sessions of mediation, I understand, with mediators retained by Victoria Legal Aid.  The mediations occurred on 10, 15 and 18 December 2015.  There has already been an unacceptable delay in this matter.  Today, the respondent mother and the independent children’s lawyer canvassed and applied for a further report to be prepared in which the parents participate. 

4. When I made an order for a Regulation 26 report on 25 January 2016, it was engrossed containing some errors and did not make clear that the parents could participate in the report.  I gather that there was a miscommunication between the requesting parent (the father) and the registry and so the father did not respond to the family report writer’s requests to participate.  As a consequence of which the mother was not able to participate. 

5. It was submitted to me today that the court would be better informed if there was a supplementary report in which the parents did participate, certainly in terms of gauging the insight of each parent to cope with the consequences for the child of being returned to Hungary.  I agree that the court may be assisted in the context of crafting conditions for return.  However, it does not seem to me that the report as it currently stands makes out any exception to return and I do not think it needs any form of elaboration over and above the cross-examination of the family consultant.

6. The other concern I have is that a further Regulation 26 report based on what are essentially the parenting capacities of the mother and the father is not what Hague return proceedings are about.  These are forum proceedings.  It is not an adjudication of parental capacity.  That should be done in the forum where the child belongs and these proceedings are to determine where the child belongs.  It may well be, and it does appear at this stage, that the child does belong in Hungary and the only exception to return which appears to have the scope to defeat a return is that relating to the potential incarceration of the mother.

7. In relation to the criminal charges which the mother potentially faces, I am informed that they may not be criminal, that they may be quasi-criminal in nature. That they do not relate to the mother having removed the child from Hungary unilaterally and without the consent of the father, but to the fact that in so doing, she has frustrated or failed to comply with orders for orders commonly referred to as access.

8. The parties are in fervent agreement that they need some expert evidence in relation to the circumstances which the mother will find herself if she returns to Hungary.  Her own evidence is not admissible.  It is hearsay.  The parties do not know how to choose an expert because any lawyers in Australia who are experts in Hungarian law are likely to be commercially orientated rather than family law orientated. 

9. The parties jointly request that I make further communications with the network judge in Hungary to see if they can suggest one or two, or perhaps three persons, who would be eligible and appropriately qualified to be approached by the parties and then it is up to the parties to decide which one of those experts can be a single expert witness.  If they are not able to decide which is to be a single expert witness, I will decide who it is to be.  At that juncture, they will, of course, be able to submit any other people as potential experts.

10. There is one further aspect of Hungarian law which the appropriately qualified person and/or (expert) will need to express an opinion.  The mother in her material refers to her entitlement to remove the child from Hungary for one year without the prior consent of the father.  That is not conceded by the State Central Authority as being an accurate statement of the mother’s entitlement, rather it says that an inferior court or tribunal did not have jurisdiction to prevent her leaving for three weeks for the purpose of visiting Australia. 

11. The reason that there will need to be expert evidence on this point is that if the mother’s contention was right, there may well be an argument in relation to rights of custody and whether the removal was in breach of rights of custody.  The State Central Authority contends that is not the state of the law and, if we are going to have an expert on Hungarian law, that expert should be apprised of all of the litigation which was before the courts at the time that the child was removed or retained and furnish an opinion on rights of custody and breach of rights of custody.

12. Finally, it is said by counsel for the mother, that she requires an interpreter.  He says that she is about 90 per cent able to participate in proceedings without an interpreter.  That, in my view, is not enough, henceforth, the court will be required to provide an interpreter for the mother for all court hearings and events.  However, the provision of an interpreter for her to swear documents, prepare documentation and give instruction to her lawyers is going to be a matter for her, not for the court.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 18 April 2016.

Legal Associate: 

Date: 11 May 2016