STATE CENTRAL AUTHORITY & JAZEER

[2015] FamCA 174

FAMILY COURT OF AUSTRALIA

STATE CENTRAL AUTHORITY & JAZEER [2015] FamCA 174

FAMILY LAW – HAGUE ABDUCTION PROCEEDINGS — possible resolution — State Central Authority consents to mother re-opening her case in opposition to mandatory return

APPLICANT: State Central Authority

RESPONDENT: Ms Jazeer

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER: Ms Hams

FILE NUMBER: MLC 2389 of 2014

DATE DELIVERED: 25 February 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 25 February 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Porritt

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

COUNSEL FOR THE RESPONDENT: Ms Harris appeared amicus curiae

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Glezer Lanteri & Associates

Orders

IT IS ORDERED THAT

1. By not later than 12.00 noon on 25 March 2015 the respondent mother file and serve any application to re-open her case together with any evidence in support.

2. This matter be adjourned to 26 March 2015 at 9.30 am.

3. There be liberty to the parties to seek an administrative adjournment by consent.

IT IS NOTED that publication of this judgment by this Court under the pseudonym State Central Authority & Jazeer 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 2384 of 2014

State Central Authority

Applicant

And

Ms Jazeer

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. This matter comes before me having been adjourned from earlier this week, when I indicated that the respondent mother or other parties to the proceedings were to appear today to make further submissions in the proceedings.  I would consider making final orders without any further input by any party.  The proceedings are those instituted pursuant to reg 16 of the Family Law (Child Abduction Convention) Regulations 1986 (Cth), which imports into Australian law the 1980 Convention on the Civil Aspects of International Child Abduction.  These reasons should be read in conjunction with reasons which I delivered for the hearing before me on 29 August 2014. 

2. These reasons update what has happened in this case since 29 August 2014.  Most notably, B, born in 2007, who is the subject of the Hague Convention proceedings, has not yet been returned to New Zealand.

3. By way of summary, on 29 August 2014 the mother had discontinued her opposition to the return of the child to New Zealand and the parents had commenced to negotiate conditions of return.  The Hague return proceedings are prosecuted by the State Central Authority and not by the father.  Accordingly, when I refer to negotiations between the parents, that was negotiation by the independent children’s lawyer in contact with the father on the one hand and the mother on the other hand.  A condition to return was that the father would pay a certain sum of money to cover expenses of the wife and two children of the relationship (of which the child B is only one) to go to New Zealand for the purpose of participating in proceedings before the courts of appropriate jurisdiction in New Zealand.  That amount of money is referred to in my reasons as being $9000.  Those moneys have not been paid. 

4. The matter returned to Court on 5 September 2014.  On that day, Ms Harris, of counsel, appeared on behalf of the mother, instructed by Victoria Legal Aid;  Ms Porritt, of counsel, appeared on behalf of the applicant State Central Authority;  and Ms Carter, of counsel, appeared on behalf of the independent children’s lawyer. 

5. It was anticipated that on 5 September 2014 the father would attend court in New Zealand before McHardy J, and McHardy J would entertain an application for orders to be made in New Zealand which provided for immediate care arrangements for the boys upon their return to Auckland and that I would make orders in Australia providing for what was to happen in the meantime.  Matters did not proceed according to plan.  The father did not attend court at all.  A legal practitioner attended on behalf of the New Zealand Central Authority, instructed to assist with any jurisdictional issues that McHardy J might have to consider.  The practitioner stated that he had received very clear instructions not to get involved in the Australian proceedings.  The practitioners who had appeared at the trial continued to appear on behalf of the parties, and worked on minutes of the precise orders which the parents intended to seek be made in New Zealand and also in Australia.  However, the matter could not progress because the father did not attend court in Auckland and the practitioner who did attend was instructed not to assist any case of the father in relation to conditions to return.

6. McHardy J had kindly allocated time to hear a relocation application by the mother in March 2015.  However, I mentioned in my reasons for decision on 29 August 2014:

   In the event that proceedings are not to be instituted in New Zealand by the end of September, I would anticipate that any entitlement or expectation of a hearing in March 2015 will evaporate.  If that occurs, the mother will still be required to return by 11 March 2015.  Accordingly, the responsibility is very largely hers to make sure the proceedings are instituted immediately.

   The mother took no steps.  In fact, the mother ceased to instruct solicitors in Melbourne and did not engage solicitors in New Zealand.

7. On 29 October 2014, I directed the parties to consider further mediation.  When I say parties, I refer to the respondent mother in the Hague proceedings and the father, rather than the State Central Authority.  The position of the State Central Authority in Australia has been not to obstruct mediation between parents, including mediation which is more extensive than the issue of forum which is currently before the court for determination.  It appears however, that the attitude of the central authority in New Zealand has not been supportive of alternative dispute resolution between the parents.

8. By a letter dated 12 November 2014, the independent children’s lawyer sent the three sets of minutes of orders to the State Central Authority and to the respondent mother.  The three sets of orders were as follows:

   (a)Minutes of orders which would finalise the Hague Convention proceedings;

   (b)Minutes of orders as between the mother and father which would be made in Australia;

   (c)Minutes of orders between the mother and father which would be made in New Zealand.

   The independent children’s lawyer advised that the further mediation of this matter would take place at 2 pm on 20 November 2014.  It was to be convened by the same chairpersons as before; that is Ms C and Mr D, who have some specialisation in Hague mediations.

9. The mediation did not take place on 20 November 2014.  I have today given the independent children’s lawyer leave to file an affidavit sworn by her on 24 February 2015, in which she detailed at paragraph 5 some of the events of 20 November 2014.  Where indicated, I augment those with matters that she has told me from the bar table today.  The independent children’s lawyer deposes that:

   During the course of this mediation, the mother disclosed a number of post-trial incidents, whereby she alleged significant family violence against her personally and indirectly towards the children.  She indicated that she was concerned about her, and the children’s safety, and any possible reprisals from the father and/or extended family/friends in Australia in the event that she disclosed those threats formally to the court.  She indicated that these alleged incidents had had a profound impact on her.  As a consequence, the chairpersons determined that it was inappropriate for the mediation to proceed and the mediation ceased with resolution.

   Today, Ms Hams told me from the bar table that the mother had presented at the location for the mediation clearly distraught, appearing to be very worried and saying that she was under the care of a medial practitioner for symptoms associated with acute stress.

10. Ms Hams is, of course, a legal practitioner and not a doctor, but she is a legal practitioner of some 16 years standing, and a practitioner who has been selected by Victoria Legal Aid as an independent children’s lawyer.  Ms Hams went on to say that the mother had complained of losing some 16 kilograms in weight since the trial, and that she (Ms Hams) observed the mother to have lost a significant amount of weight.  She the child that the mother appeared to have capacity to give instructions and to conduct proceedings, but was obviously extremely fearful about something.

11. In the meantime, an independent children’s lawyer had been appointed in New Zealand.  I understand that to be one Deborah Sim, barrister.  There has been some communication between Ms Sim in New Zealand and Ms Hams in Australia.

12. On 26 December 2014 the matter came before Judge McHardy in New Zealand.  There having been filed no material whatsoever by the mother in New Zealand, his Honour vacated the special fixture of this matter on 22, 23 and 24 March 2015, and allocated time for the father to give a “formal proof hearing”. 

13. Last week I instructed my associate to contact the parties to list the matter for mention before me, and it was listed for mention on Monday 23 February 2015.  At that time it was not possible for the court to contact the mother.  There was no answer on the telephone numbers provided by her; however, in the preceding week a court officer had managed to contact the mother, who acknowledged that she knew the matter would be listed on Monday and that she was required to attend.  Notwithstanding, there was no attendance by her or on her behalf.  Ms Hams appeared by telephone and Ms Porritt of counsel appeared on behalf of the State Central Authority.

14. On 23 February 2015, I made orders which adjourned the proceedings to today and provided that unless the mother appeared in person and the other parties who could appear by telephone made further submissions, I may well make final orders, which would have the effect of requiring the father to pay the $6000 by 4 March 2015 and for the child to return to New Zealand, either in the care of the mother or alone, by not later than 11 March 2015.  The precondition of payment by the father was $6000 rather than $9000 because $3000 had always been attributable to the cost of the mother and children returning to New Zealand for a social science assessment.  As it happened, on 5 September 2014 McHardy J indicated that the assessment could be done by telephone instead.  Accordingly, the mother would not require $3000 by way of flights and accommodation to return to New Zealand.

15. On 24 February 2015, this matter came before Judge McHardy in the Family Court at Auckland.  His Honour had taken the formal proof from the father and then set the matter down for hearing in due course, which hearing his Honour indicated would not be for some months hence.  In the course of taking the father’s formal proof, his Honour noted that:

    [14] Mr F has engaged in the court process today.  He advised the court this morning that he and the children’s mother have been in recent communication, that they have made an agreement along the lines that the mother would bring the children back to New Zealand, that she would settle them in the father’s care and then return to Australia.  The father was obliged to then complete his application for New Zealand citizenship.  Once that had been granted, he would permanently move to live in Australia so the children would be parented by both parents in Australia.

16. Today before me, the mother confirms that she had agreed with the father to return the children to New Zealand and to leave both children with him whilst he finalised his New Zealand citizenship, whereupon he would move to New Zealand.  She did not, however, consider this to be a conclusive agreement because “there were holes in it”.  For instance, it was not certain how long the father’s application for New Zealand citizenship would take.  An application which had been made by him for his brother had taken, on my recollection of the father’s evidence given in August 2015, approximately one year.  The father thought that his application for citizenship could take considerably less time because the appropriate authorities had accepted the accuracy or veracity of the account by the husband’s brother of how he and the father had found their way to Australia. 

17. Clearly the agreement between the mother and the father leaves open-ended to a very large degree the date by which the father would return the children to Australia and come to live here himself.  The return of the children is also contingent on the New Zealand government granting him citizenship, for which he has not applied.  Objectively viewed, the mother would appear naïve to regard such an open-ended arrangement as an agreement to do very much at all.  It seems more like an expression of intention which is yet to be acted on.

18. The mother stated unambiguously that come what may, both she and the requesting parent were of the view that the children should remain together rather than to be split.

19. I am very concerned about the well-being of these children in the event that they travel to New Zealand and are left in the sole care of the father.  The mother tells me from the bar table today that the father’s brother has vacated the residence which the men shared and has gone to live overseas, possibly in Country E.  That leaves the father unassisted with his care of two children in the event that the mother leaves them with him.  The author of the Hague Report in relation to grave risk of harm made comments which are extracted by me at paragraph 34 of my reasons on 29 August 2014 as follows (my emphasis):

    There were no formal parenting arrangements or Court Orders in force or being executed in New Zealand prior to the children being removed to Australia. Whilst it appears clear that New Zealand was historically the child’s habitual place of residence, and whilst a return under the Hague Convention is a possibility, the issue remains whether the Court should exercise discretion about his return. This relates specifically to the potential risk to the child psychologically, in being separated from his mother and sibling.

    In the event [Ms Jazeer] was to return to New Zealand with [the child], the impact may be considerably mitigated. If the maternal family were to return intact, there may be limited disruption to the child, other than to any social connections developed in Australia.

    There may be a profound impact to [the child] socially, emotionally and psychologically however, in the event he is returned to New Zealand and his mother and brother remain in Australia. In this respect, he will also be separated from his extended maternal family who have also played a noteworthy role in his development to date. Although disputed, the father does not appear to have played a primary role in the child’s development or care historically. Thus, [the child’s] connection to his father is likely to be less close than with his mother and maternal family.  [The child’s] foundation years developmentally appear to have been spent primarily with his mother or maternal grandmother, with his father as a secondary parental figure.

    Although [Mr F] claims to have had a close and loving relationship with [the child], it is difficult to hypothesise how either he or [the child] would cope in the event of the father assuming primary care. The potential absence of significant paternal time both post-separation and during the later part of the parental relationship is likely to have significantly impacted the strength of the father-son relationship. Given the historical care arrangements and likely attachments of this child, it is possible that the cost of [the child] returning to New Zealand without his mother and brother may outweigh the benefit of reintroducing the paternal relationship at this point in time.

    Similarly, [Mr F] has had limited contact with [the child] since the children moved to Australia 14 months ago. Although the reason for this is disputed between the parents, this is likely to have further impacted upon [the child’s] relationship with his father. Separating the child from his mother, brother and maternal family to live with his father in an unfamiliar primary care arrangement, with a parent he has not lived with since 2011, may be a very confronting and a potentially traumatic experience for [the child]. This may place [the child] in an intolerable position psychologically. He may experience difficulties in being separated from his mother or assimilating into his new care environment.

    B is a young child who appears introverted and quietly spoken, and thus he is likely to internalise any difficulties he experiences rather than externalising them. In this respect, any impact borne by either the Court’s decision or his parent’s actions, may be difficult to determine. [The child] will benefit from counselling assistance to provide him with additional support and to evaluate his emotional state, regardless of the Court outcome.

    It is highly possible that [the child’s] relationship with one of his parents will be fractured by the outcome of the current proceedings. [The child] and his parents will require appropriate support in this respect. There is also risk to [the child’s] relationship with his maternal grandmother and aunts if he was to return to New Zealand, and they remain in Australia. These appear relationships of significant importance to him.

    Without adequate supports to assist [the child’s] transition in this respect, there is a risk to him regressing developmentally and emotionally. It will be incumbent on the father to make appropriate provisions for [the child] if he is placed in his primary care, and to be aware of the potential impact of being separated from his mother, brother and maternal family. The gravity of which, currently appears ill considered by [Mr F], as it is his belief that [Ms Jazeer] will not leave [the child] behind.

20. It is now possible that the child would be able to remain with his brother. However, his brother is a younger sibling and someone in whose company the child likely finds some comfort but also to whom the child is likely to feel a sense of responsibility rather than being nurtured by his sibling.  It is far from a straightforward case.

21. The mother seeks an opportunity to re-open her case. The State Central Authority does not oppose it.  I will order accordingly.  It is likely that the State Central Authority may wish to put on evidence in response.  However the first step is for the mother to file that which she says she wants an opportunity to file but has failed or neglected to file to date.  Accordingly, I have adjourned this matter for mention before me on the day after the date by which the mother has to file her application. If no application is filed, the proceedings can proceed to a final decision based on the evidence before the Court.  If the mother has filed documents, there is provision for the parties to request an adjournment without the need to come to court and, presumably, that is what they would do so that the State Central Authority can file evidence in response.

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 25 February 2015.

Legal Associate:

Date:  26 February 2015