STATE CENTRAL AUTHORITY & BALLARD

[2011] FamCA 828

FAMILY COURT OF AUSTRALIA

STATE CENTRAL AUTHORITY & BALLARD [2011] FamCA 828

FAMILY LAW – Hague access application - Ex-parte orders – exceptional circumstances warranting the appointment of an independent children’s lawyer – child nearly sixteen years of age – early designation of a family consultant

Family Law Act 1975(Cth)
Family Law (‘Child Abduction Convention’) Regulations 1986 (Cth)

Re D (A Child) (Abduction: Rights of Custody) [2006] UKHL 51
R v Kelly (Edward) [2000] QB 198

APPLICANT: State Central Authority

RESPONDENT: Mr Ballard

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 7200 of 2011

DATE DELIVERED: 12 August 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 12 August 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Carey

SOLICITOR FOR THE APPLICANT:

Department of Human Services

Legal Services Branch

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

Orders Ex-Parte

IT IS ORDERED THAT:

1.The application of the State Central Authority filed on 11 August 2011 in relation to the rights of access of Ms Ballard to the child B born … 1995 be adjourned to 4.00 pm on Wednesday 24 August 2011.

2.The State Central Authority forthwith make enquiries of the requesting parent to ascertain her current residential address, and whether in all of the circumstances it is feasible and practical for her to participate in the hearing by telephone link on the adjourned date, having regard to international time zones.

3.In the event that the mother has moved away from the region of C Town, State D, Country E to a place which makes the adjourned time of 4.00 pm impracticable, the State Central Authority notify my chambers – … - and the respondent father as soon as possible and the matter be re-listed by arrangement with my Associate.

4.Pursuant to section 68L(2) of the Family Law Act 1975 the interests of the child B born … 1995 be independently represented by a lawyer AND IT IS REQUESTED that Victoria Legal Aid arrange such representation in sufficient time to have the file by the adjourned date.

5.Forthwith upon appointment by the said Victoria Legal Aid or otherwise the independent children’s lawyer file a Notice of Address for Service.

6.Within 48 hours of notification of such appointment the solicitor’s for the respective parties provide to the independent children’s lawyer copies of all relevant documents relied upon.

7.IT IS REQUESTED that the Director of Child Dispute Services of this Registry of the Court either designate a family consultant who is to have responsibility for assessing the family and preparing a report for the Court or, alternatively, nominate a Family Relationship Centre in to which the family can be taken for mediation or conciliation NOTING THAT there may be difficulties in relation to international time zones.  In any event, IT IS REQUESTED that a family consultant of Child Dispute Services of this Registry of the Court attend Court on the adjourned date for the hearing to give evidence in relation to the feasibility of either course.

8.The reasons for decision this day be transcribed and when settled copies be made available to the parties.

9.Within 7 days of service upon him of a sealed copy of the application filed 11 August 2011 and this Order the respondent father file a Notice of Address for Service.

IT IS NOTED that publication of this judgment under the pseudonym State Central Authority & Ballard 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 7200 of 2011

State Central Authority

Applicant

And

Mr Ballard

Respondent

REASONS FOR JUDGMENT

EX-TEMPORE

1. This ex-parte matter comes before the Court pursuant to an application made under the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”) for the enforcement of access by Ms Ballard to her daughter, B, born in 1995, pursuant to orders made in State D in 2006. The application was filed yesterday and is listed before me today in accordance with arrangements to list all Hague matters as soon as possible for directions and for the Court to entertain any ex parte relief as a matter of urgency. The majority of Hague Convention applications pertain to alleged international parental child abduction. This is not such a case. This is an access case pursuant to Part 24 of the Regulations which, inter alia, provide:-

   24 (1)The Commonwealth Central Authority must take action to establish, organise or secure the effective exercise of rights of access to a child in Australia if:

   (a)    it receives a request from a Central Authority on behalf of a person who claims:

   (i)to have rights of access to the child under a law in force in a convention country; and

   (ii)that those rights have been breached; and

   (b)    it is satisfied that the request is in accordance with the Convention.

   […]

   25 (1)The responsible Central Authority may apply to the court, in accordance with Form 4, for any of the following orders:

   (a)     an order specifying with whom a child is to spend time or communicate;

   (b)    an order for the issue of a warrant mentioned in regulation 31;

   (c)     any other order that the responsible Central Authority considers appropriate to give effect to the Convention.

   […]

   25A (1)If a court is satisfied that it is desirable to do so, the court may, in relation to an application made under subregulation 25 (1):

   (a)     make an order of a kind mentioned in that regulation; and

   (b)    make any other order that the court considers to be appropriate to give effect to the Convention; and

   (c)     include in an order to which paragraph (a) or (b) applies a condition that the court considers to be appropriate to give effect to the Convention.

2. Today, Ms Carey appears on behalf of the State Central Authority. She does not seek to proceed ex-parte with any substantive aspect of her application, and merely seeks that the matter be progressed procedurally if possible. I will accede to the request to adjourn the matter to permit service on the respondent father, adjourn the matter to a date at a reasonable time of day having regard to the international time zone difference, appoint an independent children’s lawyer and ask for the assistance of the manager of Child Dispute Services of the Court to nominate a Family Consultant to the matter so that he/she can be designated to it pursuant to s 69ZS of the Family Law Act 1975 (Cth).

3. B is 15 years old. She turns 16 later in the year. It is noteworthy that the provisions of the Regulations, and indeed the 1980 Convention, will cease to be operative in relation to the child when she attains the age of 16 years.

4. The documents annexed to the application indicate that the father and his partner, the child’s stepmother, relocated from State D in Country E without the consent of the mother in early to mid-2006, and subsequently that relocation was permitted by a court of competent jurisdiction in State D.  However, the mother has not seen the child face to face since 2006. 

5. The application completed by the mother and sent to the appropriate authorities in Country E is dated 4 August 2009.  I am informed by Ms Carey for the State Central Authority that the application was received in their office in approximately January 2010.  Following receipt of the application, contact was made with the father, and there were some negotiations and correspondence, but Ms Carey fairly concedes that the matter has not been followed through.  She is in no doubt, however, that the mother still seeks to proceed with the application, from which indication I infer that there has been some recent contact. 

6. There is no explanation about what happened to the mother’s application between the date upon which it was made, that is August 2009, and it reaching the State Central Authority in January 2010. This raises the issue of the current whereabouts of the mother. I require that the mother be given the opportunity to participate in the proceedings, to the extent that she is able to do so. The Regulations, in my view, confer standing on the State Central Authority to make the application, but these are parenting proceedings and the mother will have to give evidence, and it is only fair that she be able to understand what is happening in court.

7. Accordingly, I will accommodate any sitting out of hours so that the mother can participate reasonably and comfortably from her time zone.  If she is still in C Town, State D, by adjourning the matter to 4.00 pm our time, I calculate that that will be approximately 7.00 am C Town time.  At this point, the mother does not have to give evidence or to be sworn, and I would confine her participation to listening in by telephone link.  She can do that from home so, if it is only 7.00 am, that is not too early an hour in my view.  However, we don’t know where the mother is, and I will require the State Central Authority to forthwith find out and then contact my chambers and the father in the event that the mother is actually situated within a different time zone, which makes the time at which this court will sit impracticable or unfair for her. 

8. It is a basic requirement in our legal system that parties be accorded procedural fairness. It is unusual that any orders are made ex parte, and usually only in circumstances where there is some real urgency or jeopardy such risk of flight that the court will entertain an application without giving persons against whom orders are sought an opportunity to be heard. I don’t know many of the facts about this case, my knowledge is confined to the information in the application. However, it is brought pursuant to an international treaty. There seems to have been an inordinate and inexplicable delay in getting the matter to Court. I am concerned that the child’s rights may stand to be compromised by the inordinate and inexplicable delay in a manner which may not be able to be remedied subsequently for various reasons including that the Regulations will cease to have application to the child when she becomes 16 years old. If the requesting parent cannot invoke the 1980 Convention, the benefit to the child of knowing both the parents may never be considered, much less enforced. I note that there is only a relatively short amount of time before the application of the 1980 Convention will lapse in relation to the child.

9. I am prepared to proceed this matter in terms of considering the appointment of an independent children’s lawyer, and requesting the assistance of Child Dispute Services.  I will not, however, entertain any other substantive aspect of the application, and will wait to hear what the father has to say, and what material he will rely upon.

10. Section 68L(3)(a) provides that in proceedings brought under the Regulations, 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”.

11. Given the time constraints arising from the lateness of the application to the Court, if an independent children’s lawyer is to be appointed he/she must be appointed at the earliest possible opportunity, which is now.  To fail to address at the outset of proceedings 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 respondent father (if he choose to be represented).  As Baroness Hale of Richmond 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.[1]  Lady Hale was considering an abduction case but the same principles apply here.

    [1] Re D (Abduction: Rights of Custody) [2006] UKHL 51 [61]

12. B is nearly 16 years old.  It will be necessary for the Court to consider any views which she has.

13. 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.

14. Re D (A Child) (Abduction: Rights of Custody)[2] 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[3], 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.

    [2] UKHL 51, [2007] 1 FLR 961 (‘Re D’).

    [3] 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.”

15. Within our own region, I note from an article of Judge Paul von Dadelszen[4], 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.’

    [4] [2009] IFL 152.

16. The position in the United Kingdom and in New Zealand is clearly not binding on this court and those cases were pursuant to the adbuction, rather than access, aspect of the 1980 Convention.  However, they assist me inasmuch as they indicate that in other party States to the Convention, an independent children’s lawyer would, likely, be appointed.

17. As far as our law is concerned, I must consider what constitutes an exceptional circumstance for the purpose of s 68L(3) and do so in the context of this being a parenting case under Part VIII in which the State Central Authority is the applicant and the requesting parent (the mother) is a witness but not directly before the Court.

18. 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.

19. Lord Bingham of Cornhill CJ’s description of ‘exceptional’ is of assistance to me.

20. This will be a less adversarial trial matter within the meaning of Part VII Division 12A of the Act and consequently the Court does have the power to direct and make orders about the content and source of evidence.[5]  Principles which guide proceedings under Part VII, Division 12A include[6]:-

    [5] Family Law Act 1975 (Cth) s 69ZX provides for the court’s general duties and powers relating to evidence.

    [6] Family Law Act 1975 (Cth) s 69ZN(2).

    Principle 1

    (3)  The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.

    Principle 2

    (4)  The second principle is that the court is to actively direct, control and manage the conduct of the proceedings.

    Principle 3

    (5)  The third principle is that the proceedings are to be conducted in a way that will safeguard:

    (a)  the child concerned against family violence, child abuse and child neglect; and

    (b)  the parties to the proceedings against family violence.

    Principle 4

    (6)  The fourth principle is that the proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child-focused parenting by the parties.

    Principle 5

    (7)  The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.

21. In its determination of the request for “access” orders, the Court must have regard to the primary and additional considerations set out in s 60CC of the Act.

22. It would be regular and routine, if this matter was not brought under the Regulations, that an independent children’s lawyer would be appointed in like proceedings about a child of nearly 16 years. I cannot countenance that the child should be disadvantaged because her mother is not directly a party to the proceeding and it is brought under an international convention, particularly as that circumstance is more likely than not to obscure rather than elucidate the child’s views.

23. I appreciate that a family report or child assessment may be another means by which the Court can be appraised of what the child is thinking, what kind of relationship she has with her parents, the likely effect of changes to her current situation, the practical difficulty of communication, the capacity of the parents to provide for her emotional needs and the attitude each has displayed, thus far, to their responsibilities as parents.  However, procedurally, there should be someone before the Court to represent the child’s interests in the meantime including, if necessary, to agitate for some form of reportable assessment or priority of determination of the case.

24. I am satisfied that in the circumstances of the case, viewed cumulatively, are out of the ordinary and justify that appointment of an independent children’s lawyer.

25. The role of the independent children’s lawyer is to form an independent view, based on available evidence, of what is in the best interests of the child and then act in these proceedings in what they believe to be her best interests.[7]  The independent children’s lawyer is not a legal representative retained by the children and he cannot be bound by instructions from the children or either of them.[8]  The independent children’s lawyer is required to deal impartially with the parties.  As indicated above, the legislation requires the independent children’s lawyer to put any views expressed by the child and also to analyse documentary, 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 child the trauma associated with proceedings[9] and to facilitate an agreed resolution of matters in issue to the extent that it is in the best interests of her to do so.[10]

    [7] Family Law Act 1975 (Cth) s 68LA(2).

    [8] Family Law Act 1975 (Cth) s 68LA(4).

    [9] Family Law Act 1975 (Cth) s 68LA(5)(d).

    [10]Family Law Act 1975 (Cth) s 68LA(5)(e).

1. The mother in her application says that she will participate in any counselling through a family relationship centre.  I will ask the manager of Child Dispute Services to nominate such a centre.  It may be that it is impracticable for the family to enter that form of counselling, and that they can go directly to reportable counselling by the Court, but that is a matter which will be decided only after having the benefit of hearing from the father on the adjourned return date. 

2. I request that on the next return date, when the father is before the Court, a family consultant attend Court on the basis that he/she will be the designated family consultant and be able to attend to such reporting and supervision of the matter as is necessary.

I certify that the preceding twenty seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 12 August 2011.

Associate:

Date:  26 October 2011