State Central Authority & Handbury

[2020] FamCA 268

FAMILY COURT OF AUSTRALIA

STATE CENTRAL AUTHORITY & HANDBURY AND ANOR [2020] FamCA 268

FAMILY LAW – CHILD ABDUCTION – where order for child to return to the United Kingdom is confirmed on appeal – where respondent seeks to retain child in Australia whilst participating in proceedings in England to permit relocation of child to Australia – where application is refused.

Convention of 25 October 1980 on the Civil Aspects of International Child Abduction
Family Law (Child Abduction Convention) Regulations 1986 (Cth)

State Central Authority & Handbury [2019] FamCA 668

APPLICANT: State Central Authority

RESPONDENT: Ms Handbury

REQUESTING PARENT: Mr Handbury

INDEPENDENT CHILDREN’S LAWYER: Ms Smith

FILE NUMBER: MLC 122 of 2019

DATE DELIVERED: 10 February 2020

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 10 February 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Greenham

SOLICITOR FOR THE APPLICANT: Department Of Health & Human Services, Legal Services Branch

COUNSEL FOR THE RESPONDENT: Mr Serra

SOLICTOR FOR THE RESPONDENT: KHQ Lawyers

COUNSEL FOR THE REQUESTING PARENT: Ms Hannan

SOLICITOR FOR THE REQUESTING PARENT: Burke Family Law

COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER: Not Applicable

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

Orders – as amended on 27 February 2020

1. The Order made on 27 August 2019 as varied by the Order made on 13 September 2019 remain in full force and effect save that:-

   (a) Paragraph 6 of the Order made on 27 August 2019 be varied so that the dates that the father accompanies the child Z born … 2013 (“the child” “Z”) back to the United Kingdom is between 17 And 18 February 2020;

   (b)       Paragraph 6(b) of the Order made on 27 August 2019 be varied so that the date that the father provide a copy of the tickets for him and the child and details of the itinerary to the State Central Authority, the mother and the Independent Children’s Lawyer be by 5.00 pm on 13 February 2020;

   (c)       Paragraph 7 of the Order made 27 August 2019 be varied so that the date that the mother reimburse the father for half of the cost of the child’s flight is 14 February 2020;

   (d)       Paragraph 15 of the Order made on 27 august 2019 as varied by paragraph 1 of the Order made on 13 September 2019 be varied so that it reads:

   “Upon the return to the United Kingdom and until orders are made by a court in the United Kingdom:

   i)        The child live in City D with the mother and the father as follows:

   (1)For the first three weeks of an 8 week rotating cycle, commencing upon the child’s return to the UK from 19 February 2020 as follows:-

   a)with the father for the first 3 nights and each week thereafter;

   b)with the mother, for the remaining 4 nights and each week thereafter;

   (2)For the fourth week of an 8 week rotating cycle, for 7 nights with the father;

   (3)For the fifth week of an 8 week rotating cycle, commencing the day following Z’s time with the father pursuant to paragraph 15(d)(i)(2) herein as follows:

   a)with the mother, for the first 3 nights and each week thereafter;

   b)with the father, for the remaining 4 nights and each week thereafter;

   (4)For the eighth week of an 8 week rotating cycle, for 7 nights with the mother; and

   (5)      As otherwise agreed by the parties in writing.

   (ii)The spend time arrangement contained in this paragraph is suspended during school term and long summer school holidays when the parents each spend equal time with the child at dates and times agreed by the parties in writing;

   (iii)Upon the return of the child to the United Kingdom the mother, Ms Handbury, and the father, Mr Handbury, their servants and / or agents BE RESTRAINED from causing or permitting or suffering the child to be removed from the United Kingdom without the written consent of the other parent.”

2. Ms Handbury deliver the child to Mr Handbury at 7.00 pm on 16 February 2020 for the purposes of the child travelling back to England with changeover to occur at the home of the maternal aunt, Ms R, at Suburb UU.

   (Paragraph 3 removed and numbering change to below paragraphs as underlined – Amended 27 February 2020)

3. My reasons for decision this day be transcribed and when settled placed on the Court file and a copy provided to the parties.

4. Otherwise the Application in a Case of the wife filed 31 January 2020 and the Response thereto of the husband filed 7 February 2020 be and are hereby dismissed.

AND IT IS NOTED that these orders finalise the proceedings in the Family Court of Australia.

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 Handbury 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 122 of 2019

STATE CENTRAL AUTHORITY

Applicant

And

Ms Handbury

Respondent

Mr Handbury
Requesting Parent

And

INDEPENDENT CHILDREN'S LAWYER

EX TEMPORE REASONS FOR JUDGMENT

1. This matter comes before me on the mother’s application filed following the dismissal by the appeal division of this Court of the mother’s appeal against the return order made under the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”). My reasons for decision on the return application are published under case neutral citation [2019] FamCA 668.

RECORDED  :  NOT TRANSCRIBED

1. In short compass, Z, who was born in 2013 and is, therefore, nearly seven years old, came to Australia with her parents in October 2017.  I was satisfied that the parents came to Australia with the intention of returning to England at the expiration of two years.  By February 2018, the mother had decided that she would prefer to remain in Australia, and it was alleged and ultimately found by me that she repudiated the previous agreement to return by September 2019.  At the behest of the father, Hague proceedings were instituted on 15 February 2019 and, in accordance with our procedures, the application was prosecuted by the State Central Authority. 

2. The matter was finally decided by me in August 2019 with a return order being made.  I found that all of the threshold matters were satisfied, and that there had been no exception to return made out.  The mother appealed that decision and the appeal decision was handed down on 21 January 2020, upholding my original decision.  The mother then made application to the Courts in the United Kingdom for, amongst other things, an order permitting her to retain Z in Australia whilst she prosecuted her relocation application in the English Courts.  The mother also sought that the social science evidence be obtained from a private family report writer in Melbourne rather than using the Children and Family Court Advisory and Support Service (“Cafcass”) in the United Kingdom.  A Cafcass assessment would necessarily require the child to travel back to the United Kingdom. 

3. In essence, having failed on appeal, the mother seeks on an interim basis to retain the child in Australia so that she can prosecute her application in the United Kingdom for the child to remain here permanently. 

4. The English proceedings filed by the mother are returnable on 20 February 2020.  It was originally sought that today’s application not be listed for hearing until after 20 February.  However, I have brought the matter on today, which is just after the mother has returned from some employment commitment interstate. 

5. Today, counsel for the mother alters the mother’s position slightly by saying that he would be satisfied with a return order for the child, which did not take effect until 24 February. 

6. The applicant State Central Authority and the father oppose the mother’s application.  Ms Greenham appears for the State Central Authority and says that the mother’s application, if granted, would just lead to a series of delays and the intention of the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (“1980 Convention”) would be subverted.  The Independent Children’s Lawyer, Ms Smith, takes the view that Z would be fine either way and did not advance a position about whether or not Z should remain in England or in Australia. 

7. If the mother’s application was acceded to, it would, in my view, lead to serial adjournments in this Court and further delay in implementation of the return order which was recently upheld on appeal.  It is most likely that on 20 February 2020, in England, the mother’s legal representatives would seek an order allowing the child to stay in Australia until the next step of the English proceedings was completed.  As far as the steps in the English proceedings are concerned, the mother has not filed any evidence by herself.  Her solicitor has sworn an affidavit which purports to describe what application the mother has made. 

8. The solicitor maps out that on 20 February, it may be that there is no decision from the English Court about where the child should be in the interim, and because the proceedings may be adjourned off to permit a Cafcass officer to make an assessment, it is not certain when the interim matters would finally be resolved.  It is foreshadowed that in the event that the mother failed at an interim stage, “she would have the option of appealing that decision.”

9. The parents have spent a great deal of money in proceedings in Australia.  Whilst the State Central Authority prosecuted the Hague return application at first instance, the father was joined to those proceedings at the end for the purpose of making some safe harbour orders to facilitate the orderly return of Z to the United Kingdom.  He also participated in the appeal. 

10. I have asked the parents for details of their costs and am alarmed by the information that was given. 

11. The wife for the Australian proceedings alone (that is not including anything spent by her for legal advice and proceedings in the United Kingdom) has been invoiced some $252,139, of which the wife has paid all but $7677.  There will be further costs associated with preparation of the application returnable today. 

12. The father has been invoiced and has paid some $140,000.  He says that he has done so with the support of loans or advances from his family.  I have not sought information about the terms of repayment.  He says that $65,000 was referrable to his participation in the mother’s unsuccessful appeal.  My recollection is that the husband applied for costs at the appeal, but failed in that application.

13. If the mother had been conscientious about wanting to retain the child in Australia and to participate in the English proceedings from Australia, she would have made the application which she has now made to the English Courts much earlier than she has.  The application could have been made immediately following my decision in August 2019.  To do so would not have hindered her arguments on appeal.  The fact that the mother makes her application as late as she has made it, is productive of real potential for serious and unacceptable delay.  It could be said that delay advances the mother’s interests.  Delay is something that Hague proceedings are not intended to encourage.

14. I determine this application under the Regulations. This is not a regular parenting application in which the paramount consideration is Z’s best interests. I can, and do, take Z’s interests into account but I also have regard to the purpose and policy of the 1980 Convention which finds expression in the Regulations. The order I make must be one which I am satisfied gives effect to the 1980 Convention.

15. I am firmly of the view that it is time for the parents to concentrate their efforts to resolve their parenting dispute in one jurisdiction and that the mother ought cease trying to run proceedings in two jurisdictions. 

16. It is appropriate that Z have decisions made by the court which can, and will, decide the disputes between the parents in Z’s best interest.  Indisputably, that is a court in England.  Accordingly, I will not accede to the mother’s application.

17. Mr Serra for the mother has responsibly considered the mother’s fall-back position.  I am against the mother in terms of her application returnable today. 

18. Having found against the mother’s application, I can now largely make orders in the terms of the father’s application, that is, in the terms of paragraphs 1 and 2, with some amendments, which Mr Serra has sought and which has been agreed to by the other parties. 

19. In the result, the father will return with Z on 17 or 18 February, 2020.  The mother will deliver Z to the father at 7 pm on 16 February at the home of the maternal aunt, Ms R, who lives in Suburb UU.  The mother will reimburse the father for one-half of the child’s airfare by 16 February. 

20. There will be no provision in the orders, which now are a combination of orders made on 27 August 2019, 13 September 2019 and today, to identify the school which Z will be enrolled upon her return to the United Kingdom or shortly thereafter.  That matter can be decided by the Courts in the United Kingdom. 

I certify that the preceding twenty one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 10 February 2020.

Associate: 

Date:  23 April 2020