STATE CENTRAL AUTHORITY & DOBBIN

[2018] FamCA 34

FAMILY COURT OF AUSTRALIA

STATE CENTRAL AUTHORITY & DOBBIN [2018] FamCA 34

FAMILY LAW – HAGUE CONVENTION – where the State Central Authority sought return orders to the United States in circumstances where the requesting father had already commenced proceedings for custody of the children in that country and in proceedings in which the mother had participated – where the Chief Judge of the relevant court had ruled that on an interim basis, the children could remain with the mother in Australia – where it was appropriate over the opposition of the Central Authority to adjourn the proceedings to see what the court in the United States would do as the philosophical basis for the application had been largely fulfilled.

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

De L v Director General, NSW Department of Community Services & Anor (1996) 187 CLR 640
DP v Commonwealth Central Authority (2001) 206 CLR 401
Re T & J [2006] 2 FLR 1303

APPLICANT: Department of Health and Human Services, State Central Authority

RESPONDENT: Ms Dobbin

FILE NUMBER: MLC 11368 of 2017

DATE DELIVERED: 31 January 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 29 January 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Dr Parker

SOLICITOR FOR THE APPLICANT: State Central Authority, Legal Services, Department of Health and Human Services

COUNSEL FOR THE RESPONDENT: Ms Boymal

SOLICITOR FOR THE RESPONDENT: Victoria Legal Aid

Orders

1. The application filed 2 November 2017 is adjourned to a date to be fixed to be relisted upon request from either party after the next determination by the Chief Judge, County B Superior Court, County B, State of C, United States of America.

2. That a copy of the orders and the reasons for judgment this day be forwarded by the Court to the Chief Judge in County B.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym State Central Authority & Dobbin has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 11368  of 2017

Department Of Health And Human Services, State Central Authority 

Applicant

And

Ms Dobbin

Respondent

REASONS FOR JUDGMENT

1. On 2 November 2017, the State Central Authority (SCA) in Victoria filed an application under the Family Law (Child Abduction Convention) Regulations 1986 for an order for the return of four children of Mr D (their father) and Ms Dobbin (their mother) to the United States of America where three of the four children were born. The oldest child was born in Australia but it is common ground that she moved to the United States as an infant.

2. The four children are now aged 12, 9, 4 and 1 respectively.

3. The SCA seeks an immediate return to the United States order. The mother not only opposes that but seeks that the application of the SCA be dismissed. To understand what happened here, some of the chronology becomes important.

4. In June 2017, and with the father’s consent, the mother brought the children from the United States of America to Australia to visit family. In August 2017, the father was told by the mother she was not bringing the children back.

5. Curiously, bearing in mind the expeditious nature of international children’s cases, one might wonder why there was a gap in activity between August and November 2017. The answer seems to lie in the fact that on 5 October 2017, through his lawyers, the father filed a custody motion in the Superior Court of County B in the State of C. The documentary process was served on the mother in Australia on 17 October. The International Convention had not then been activated.

6. It would seem that the mother responded quickly because she joined issue with him on an unspecified day in the month of October.

7. As earlier mentioned, the father requested the activation of the relevant convention but notwithstanding that, chose to proceed with his motion before the Court in the United States.

8. A hearing before the Chief Judge of the County B Superior Court was held on November 20 and her Honour gave judgment on the following day. The Chief Judge was aware of the existence of the Australian proceedings because they were mentioned in the reasons for the orders her Honour made. I have had the benefit of those reasons for judgment.

9. The only person who seemed unaware of the United States’ proceeding was the relevant Australian SCA. No mention was made of it but further, this Court was told that there were no pending proceedings.

10. That chronology and the matters that follow give rise to questions as to whether this Court should adopt a strict approach to the Convention or whether, based on comity principles, there should be some hesitation. I prefer to hesitate for the reasons that follow.

11. In the United States custody proceedings, there are allegations and counter allegations. For example, the mother alleges the father has been violent but also that she has been the main caretaker of the children. The father denies that. Of those two issues, in the interlocutory judgment of the Chief Judge, her Honour said:

    The Court is also convinced that the Husband has been physically abusive to the wife. The Court finds that the Husband was less than candid while testifying regarding who was the primary caretaker of the children.

12. In the proceedings here for the return of the children, counsel for the SCA was not able to say whether there was any appeal against the orders that the Chief Judge made that, with respect,  seem (on any logical reading of her Honour’s reasons) to flow from those two findings of fact.

13. But of the violence issue, the memorandum of law in support of the Convention application prepared in the United States (signed by the father but presumably prepared by his legal practitioner) said:

    In summary, (the mother) has made some allegations, for which she was able to convince a judge in a preliminary custody hearing. However, those proceedings were just that, preliminary and not reflective of the judicial process in its entirety.

14. A psychologist upon whom the father attended, reported that the father’s view about the findings or statements of the Chief Judge was:

    He felt in the preliminary trial, that he was accused of being violent, even though he protested. He felt that he was not prepared for the last court case.

15. The psychologist went further and said that the father complained that his statement was “not addressed” and that the judge “only listened to his wife” and that consequently, he had been “wronged by the system”.

16. Consequent upon making an interim custody order, the Chief Judge had also ordered the father to attend upon the psychologist just mentioned in anticipation of a further hearing which I now understand is in March 2018.

17. I raise these matters only because I consider that the Superior Court of County B County is in the midst of hearing the custody and access matter and the mother has engaged with that process. A predominant purpose in the application before the Australian court brings into consideration the question of the appropriate forum and the importance of children’s cases being determined by the judicial body in the country of their habitual residence. The mother through her counsel in Australia urges a finding that there is no utility in the application of the SCA. I am not convinced that any determination can yet be made for the reasons that follow.

18. In the Memorandum to which I have already referred, the “analysis” asserted that the facts (no doubt drawn on the father’s view of them) were elements of an international child abduction case and the children should be returned as the author aptly described it:

    (T)o allow the local courts to decide custody.

    It seems that is exactly what is now happening in March 2018.

19. There are other facts that create some confusion as to what the Chief Judge was told and which cloud the picture of her Honour’s understanding of the Convention application. For example, her Honour said:

    The Australian government currently holds the children’s passports pending their review of their status. It is believed by counsel that the Australian review is set for sometime in January 2018. The wife only returned to the U.S. for the purposes of this hearing.

    It may be that the language used was infelicitous but then again, her Honour referred to what she was told by counsel. I am unable to discern whether the Australian Government has some status review of the rights of the mother and children to remain in this country. Otherwise, it is clear that it was this Court which ordered the retention of the passports and it is correct that I listed the final hearing of the Convention application to be held on 29 January.

20. All of these things lead to questions about what process should be followed here bearing in mind the strict nature of the application under the relevant regulations. If the exceptions are not established, the children should return but that is for the purposes of their futures being determined by the court in the country which is their habitual residence.

21. Thus, there is relevance in the orders of the Chief Judge on 21 November 2017 where her Honour held that:

    ·Because of the fourteen year history of the wife being the primary physical custodian (the youngest child still being breastfed) and along with a lack of information about the husband’s health and employment, the wife should have temporary legal and physical custody of the children;

    ·Because of the physical violence of the husband and as the mother insisted she was not safe in the United States and needs to live in Australia, an order would be made to allow the wife to retain the children in Australia; and

    ·The Husband should have and must have time with the children and the case was reset for further hearing regarding physical parenting time.

22. I consider that some significant things arise from her Honour’s orders. First, the issue of “temporary custody” which presumably would have still been controversial had a return order been made by the Australian courts, has been determined. Secondly, her Honour made findings of fact about violence which, even if still open to challenge in the “judicial process in its entirety”(to use the husband’s lawyer’s words), formed the basis of an order that for the unspecified future, the children should remain in Australia. It remains unclear to me whether there is some jurisdictional issue or some procedural importance in the children being in the United States such that the present application of the SCA must still be determined according to the regulations. There is no dispute that the mother has joined in the litigation process in the United States and I have no reason to think that the Chief Judge could not make an in personam order relating to her delivery of the children. Even if there might be some doubt about that, the Convention proceedings will still be alive under the orders I propose to make.

23. The role of SCA was openly challenged by counsel for the mother. The SCA was urged by counsel to withdraw the application based upon the fact that the father had (in the request to the SCA) chosen not to mention the United States proceedings or that he had litigated before the Chief Judge (albeit he now seems to regret not being fully prepared) with lawyers representing him. It seems that the SCA in late January 2018 had initially sought an adjournment to endeavour to find out what was happening but then chose to proceed.

24. I make no adverse criticism of the SCA. Its function is to act as an honest broker and present all of the facts available to the court in circumstances where it acts upon a signed set of instruction from a national authority based on principles of international co-operation with like-minded contracting States. They have done that here. My concern is whether or not I have all of the relevant information necessary for a return order determination.

25. The position of the SCA is that delay is unfair to the father and allows the mother to benefit from her inappropriate removal of the children; that is, it allows her to frustrate what is referred to as the deterrent effect of the Convention. I remain sceptical of that until I understand whether the proceedings before the Chief Judge about a permanent solution for the children are within her Honour’s control.

26. I am conscious of what has been described as by Sir Mark Potter P in Re T & J [2006] 2 FLR 1303, as “the shuttlecock effect”. As I observed in discussion, when it was submitted in essence by the SCA that if the courts of the United States decide that the children can relocate to Australia, there is only the expense that will be wasted. I disagree. Moving children back and forth and changing or disrupting schooling cannot be in children’s best interests. But I am also conscious that the Chief Judge has allowed the children to remain in Australia and the only reference to what is happening here is the reference to the passport. The focus of the Chief Judge was more about the father’s time with the children and how that was to be accommodated. That is what awaits the Chief Judge.

27. The present application is to decide the appropriate forum for resolving disputes relating to the child’s care, welfare and development and that has already been decided. Habitual residence as the Convention knows it does not appear to be controversial. The regulations require a finding that the removal or retention was wrongful and that too is not controversial. It is clear that priority must be given to these cases so that they are dealt with quickly for the purposes of not prejudicing the interests of anyone in any proceedings in the other contracting State.  That too is not controversial here and the Chief Judge seems not only to have accommodated the parents but they have acquiesced in respect of that determination (even if the father is unhappy about the presentation of his case).

28. It is the responsibility of this Court to implement the objects of the Convention because Australia is a contracting State. The objects of the Convention include the following:

    (1)To discourage international child abduction and retention with its negative impact on children;

    (2)To make it clear to those who might be tempted to engage in this conduct, so as to secure a chosen forum for the resolution of custody disputes, that their attempt will ordinarily fail; and

    (3)To institute effective means that will ensure the prompt return of children removed or retained in this way by the observance on the part of the authorities of the country to which the child has been removed (or in which it is retained) of a measure of restraint in what would otherwise be the right or duty of such authorities to investigate painstakingly the facts of each individual case in order to assess the best interests of the child and to determine custody. 

    (DP v Commonwealth Central Authority (2001) 206 CLR 401 per Kirby J at [122] and De L v Director General, NSW Department of Community Services & Anor (1996) 187 CLR 640 (“De L”) at 648 - 649 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ). Bearing that in mind, the pressing nature of this Court’s application has become less so because of the efficacious attention of the Chief Judge.

29. I find that the appropriate course of action here is to adjourn the application and have these reasons drawn to the attention of the Chief Judge of the Superior Court of County B in the State of C. Because I consider it disrespectful and inappropriate to set some arbitrary date, I will adjourn the application of the SCA to a date to be fixed to be relisted immediately the matter is determined in the United States, a party shows justification for it being relisted in Australia or, that there is no further utility in it. I shall ask the Court here to send a copy of my orders and these reasons to the Chief Judge by electronic means.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 31 January 2018.

Associate: 

Date:  31 January 2018