State Central Authority; Secretary To the Department of Human Services and Kasaven

[2013] FamCA 204

FAMILY COURT OF AUSTRALIA

STATE CENTRAL AUTHORITY; SECRETARY TO THE DEPARTMENT OF HUMAN SERVICES & KASAVEN [2013] FamCA 204

FAMILY LAW – CHILD ABDUCTION – HAGUE CONVENTION – Orders made for the child to spend time with her mother in New Zealand

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

De L v Director-General, New South Wales Department of Community Services (1996) 20 Fam LR 390
Director-General of New South Wales Department of Community Services v Harris (2010) 43 Fam LR 140

APPLICANT: State Central Authority; Secretary to the Department of Human Services

RESPONDENT: Mr Kasaven

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 485 of 2013

DATE DELIVERED: 27 March 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 27 March 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Nolan

SOLICITOR FOR THE APPLICANT: Department of Human Services

THE RESPONDENT: In Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Dowler

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

Orders

1. The child O born … January 2000 (“the child”) spend time and communicate with her Mother as follows;

   (1)      In 2013

   (a)for two weeks commencing in the second week of the first school term holidays (March/April)

   (b)for two weeks in the second term school holidays (June/July)

   (c)for one week commencing in the second week of the third term school holidays (Sept/October)

   (d)for the last 2 weeks of the summer school holidays (December/January) 

   Such times to take place in New Zealand unless otherwise agreed.

   (2)      In 2014

   (a)for two weeks commencing in the second week of the first term school holidays

   (b)In the event that the child is not entered into or scheduled to play a Sport D competition during the relevant period, for one week commencing in the second week of the second term school holidays

   (c)for one week commencing in the second week of the third term school holidays

   (d)For ten days commencing 24 December 2014 and concluding 2 January 2015

   Such times to take place in New Zealand unless otherwise agreed

   (3)      In 2015

   (a)for two weeks commencing in the second week of the first school term holidays

   (b)In the event that the child is not entered into or scheduled to play a Sport D competition during the relevant period, for one week commencing in the second week of the second term school holidays

   (c)for one week commencing in the second week of the third term school holidays (Sept/October)

   (d)For the second half of the summer school holidays

   Such times to take place in New Zealand unless otherwise agreed

   (4)      In 2016

   (a)for one week commencing in the second week of the first school term holidays

   (b)In the event that the child is not entered into or scheduled to play a Sport D competition during the relevant period, for one week commencing in the second week of the second term school holidays

   (c)for one week commencing in the second week of the third term school holidays (Sept/October)

   (d)For ten days commencing 24 December 2016 and concluding 2 January 2017

   Such times to take place in New Zealand unless otherwise agreed

2. In the event the Mother travels to Australia, upon giving at least 5 days notice  to the Father, the Father facilitate the child spending reasonable time with her Mother.

3. As otherwise agreed between the parents from time to time in writing.

Communication;

1. That the Mother have telephone contact with the child at least once per week with the Mother placing the call to either a mobile or landline number provided for this purpose at a set time that is likely to fit in long term with the child’s schedule and the country time difference.

2. That the Father facilitate the child being able to call and have telephone communication with her Mother and brother B at all reasonable times in accordance with her wishes.

3. On … January in each year (the child’s birthday) the parent who does not have the child in their care be permitted to telephone her on that day.

Travel:

1. Each parent is responsible for payment of half the return airfare (i.e. share the cost equally) for travel by the child between New Zealand and Australia.

2. The Father be at liberty to collect the child from the airport in New Zealand at least 2 hours prior to the time of the child’s return flight to Australia.  Notice of such intention is to be given not less than 48 hours beforehand.  Otherwise the Mother is responsible for facilitating the child to be on the departing flight to Australia from New Zealand, and the Father is responsible for facilitating the child to be on the departing flight to New Zealand from Australia.

Other matters

1. The Father and Mother keep each other informed in writing of the address the child is living at whilst in each other’s respective care.

2. The Mother is at liberty to obtain copies at her expense of school reports, school photo order forms, newsletters and other school information usually provided to parents and the father sign any necessary authority or document required by the school for this to occur.

3. The appointment of the Independent Children’s Lawyer be discharged.

4. That all extant applications be otherwise dismissed.

5. Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym  State Central Authority; Secretary to the Department of Human Services & Kasaven 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 485 of 2013

STATE CENTRAL AUTHORITY; SECRETARY TO THE DEPARTMENT OF HUMAN SERVICES 

Applicant

And

Mr KASAVEN

Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. This case began as an application by the State Central Authority acting ultimately (albeit indirectly initially) upon the instructions of the requesting parent seeking access to her 12 year old daughter O.

2. The mother lives in New Zealand and the father in Australia.  The child lives with the father in Australia.

3. This application was brought to the Court under the Family Law (Child Abduction Convention) Regulations 1986.

4. Because of the ultimate consensus between the parties, it is unnecessary for me to set out all of the facts or the procedural history save that because of the assertion of the father, in an interlocutory hearing, I ordered the appointment of an Independent Children’s Lawyer.  This was not a case seeking the return of a child and because of the age of the child, I did not consider it appropriate to order a family report.  This case was to be determined on the papers and I was greatly assisted by the Independent Children’s Lawyer.

5. The father was sensible and cooperative.  His initial concern was that his daughter might not be returned to Australia but as the matter proceeded through its early hearing stage, that concern evaporated and the ultimate issue became one of the appropriateness of the child’s time in New Zealand.

6. Because of Regulation 24, it is the applicant’s obligation to establish, organise or secure the effective exercise by the mother of her rights of access to the child.

7. What the State Central Authority sought reflected some of, but not all of, the wishes of the mother.  Sensibly in my view, counsel for the State Central Authority agreed to a variety of compromises suggested by the Independent Children’s Lawyer and agreed to by the father.  Having said that, the State Central Authority desired it be known just what the mother’s wishes were and they have been clearly articulated and considered. 

8. In summary, the contentious issue for my determination was which half or portion of the next summer holidays should be spent by the child in New Zealand with her mother.  It would appear that the critical issue arises out of the fact that the child is a very talented Sport D player and the pre-Christmas period including training obligations would suffer if she went to New Zealand to be with her mother.  The argument was therefore which portion of the holidays the child should spend in New Zealand.

9. As indicate above, the case was conducted on submissions with very little (if any) evidence and the parties to the application and the Independent Children’s Lawyer agreed, the Court should do the best it could.

The law

1. Regulation 25A specifically provides that the Court may make an order whether or not there is an extant order in the country from which the requesting parent comes. 

2. Relevantly, regulation 24 provides that the Central Authority must take action to establish, organise or secure the effective rights of access to a child in Australia if there is a request by a person whose rights of access in the other convention country have been breached and provided the request accords with the Hague Convention.  It was not disputed that those criteria had been met in this case.

3. The power to make the orders can be found in regulation 25A.  In essence, the Court may make an order specifying with whom a child is to spend time or communicate and any other order that the Court considers to be appropriate to give effect to the convention.  The Court can apply conditions.  The overriding consideration however is that the Court must be satisfied that it is desirable to make the orders.

4. It was not argued in this case that the paramountcy principle concerning the welfare of a child should apply as it would if the application was made under Part VII of the Family Law Act 1975 (Cth) (“the Act”).  Indeed, in De L v Director-General, New South Wales Department of Community Services (1996) 20 Fam LR 390 it was made clear that the paramountcy principle was not applicable to proceedings under the regulations. The Court held that the regulations were silent as to matters to be taken into account in the exercise of the Court’s discretion and that the discretion was therefore unconfined except in so far as the scope and the purpose of the regulations provided the parameters.

5. Whilst the Court’s discretion is not governed by the paramountcy principle, in addition to taking into account the underlying purpose of the convention, the Court should also consider the welfare of the child involved (see Director-General of New South Wales Department of Community Services v Harris (2010) 43 Fam LR 140).

6. In my view, whilst the protection of children is the ultimate purpose of the convention, the legislature has determined that it is best in these proceedings for the Court to base its order on a much more limited and specific approach than it would in Part VII of the Act.

7. Because the welfare of the child is clearly relevant, Part VII provides guidance.

The parties’ positions

1. The Independent Children’s Lawyer submitted that it was clear that Sport D was important to the child but at the same time, the child wanted to see her mother.  Counsel for the Independent Children’s Lawyer pointed out that the child kept coming back to the priority for her of being involved in Sport D.  Because of that conflict, the Independent Children’s Lawyer took the view that she did not want to adopt a position either way.

2. Counsel for the State Central Authority pointed out that there was scant evidence about Sport D competitions and just what obligations would fall upon the child and whilst acknowledging the important of Sport D to the child, there was no evidence to assist the Court one way or the other.  It was for that reason, the State Central Authority adopted the position that the mother’s views should be respected.

3. The father’s position was that not only was the child committed to Sport D but she was very good at it.  He acknowledged that as each year went by, it was possible that the child would abandon Sport D.  As she grew older, her views would very much influence what occurred.  He said however that at this stage, Sport D was important and he knew a lot about that because he was a coach.  He understood the training regime and the importance of Sport D competitions.  He said he had no difficulty in an alternating position but for the next summer holidays, having regard to the child’s current development and wishes, she should spend the pre-Christmas period in Australia with him and not go to New Zealand until the end of the school holiday period.

4. Thus, it was common ground that the child has a very strong desire to see and be with her mother but also to prioritise her Sport D talents.  The father is the significant figure in her life and very much involved in her sport.  In my view, the views and indeed wishes of the child must carry some weight here because they are articulated with a level of maturity and understanding which given weight because of their strength, warrants appropriate support by the Court.

5. The State Central Authority and indeed the Independent Children’s Lawyer, quite properly submitted that there was a justice issue at play here because the mother had not had the child at Christmas for the last two years. If this was a case under Part VII of the Act, the justice issue could be given weight in s 60CC provided it was still seen as in the child’s best interests. Indeed in that sort of case, the views of a child are but one factor to be taken into account.

6. If there is a balancing of the mother’s wishes because of the justice and fairness issue with what is best for the child, it seems to me that, because the child’s views should be given weight, it is desirable to make an order that follows the child’s logical thinking.  That order is desirable because it still gives effect to the convention by establishing and securing the rights of access but the Court is at large as to the extent of those rights.  In the exercise of discretion, the views of a child of the child’s development, maturity and age should therefore be respected.

7. I made the orders accordingly upon the conclusion of submissions.  The reasons above support those orders.

I certify that the preceding Twenty Three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 27 March 2013.

Associate: 

Date:  4 April 2013