STATE CENTRAL AUTHORITY & SHANLI

[2018] FamCA 715

FAMILY COURT OF AUSTRALIA

STATE CENTRAL AUTHORITY & SHANLI [2018] FamCA 715

FAMILY LAW – CHILD ABDUCTION – Hague Convention – wrongful removal – agreed return to Turkey subject to conditions under the Family Law (Child Abduction Convention) Regulations 1986.

FAMILY LAW – CHILD PROTECTION – no ability to have agreed orders made in Australia and rendered enforceable in Turkey under the Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children – no simple and rapid procedure in Turkey – conditions could not be rendered enforceable.

FAMILY LAW – INDEPENDENT CHILDREN’S LAWYER – role in forum selection proceedings.

APPLICANT: State Central Authority

RESPONDENT: Ms Shanli

INDEPENDENT CHILDREN’S LAWYER: Ms C Smith

FILE NUMBER:	MLC	2807	of	2018
TRAVEL WITH FILE NUMBER:	MLC	6414	of	2018

DATE DELIVERED: 8 June 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 8 June 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Becker

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

COUNSEL FOR THE RESPONDENT: Ms Ebejer

SOLICITOR FOR THE RESPONDENT: Ebejer & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Smith

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

Orders

WHEREAS:

A.The Respondent Mother and Father (MR SHANLI) of the child X, and Independent Children’s Lawyer, have participated in mediation and reached Orders by Consent, made 8 June 2018 (‘the parenting order’), a copy of which is annexed hereto.

B.The Applicant Central Authority has received confirmation from the Ministry of Justice in Turkey that in circumstances where there are no divorce proceedings, or judicial separation, there is no process for registration of these orders in Turkey. The Respondent Mother and Father have not filed proceedings.

C.The Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children entered into force Turkey and Australia on 1 February 2017.

D.The Respondent Mother and Father would wish to seek recognition and enforceability of the parenting order in Turkey if recognition and enforcement was available.

IT IS ORDERED THAT:

(1)The Applicant send a copy of these orders, and the parenting orders, to the Turkish Central Authority, and that confirmation of such be provided to the court within 7 days of the making of this order.

(2)The child X born … 2007 (‘the child’), be returned to Turkey pursuant to the Family Law (Child Abduction Convention) Regulations 1986 accompanied by the Respondent Mother of the child, no later than 10 July 2018.

(3)The Respondent Mother will purchase tickets for her and the Child, travelling by air from Melbourne, Australia, to Turkey. Such purchase is to be within 14 days of the making of the order.

(4)The Respondent Mother will provide a copy of the tickets and details of the itinerary to the Applicant (State Central Authority), Independent Children’s Lawyer, and Father within 7 days of purchase.

(5)Pending the child’s departure from Australia for return to Turkey, the Respondent Mother by herself, her servants and/or agents continue to be restrained and an injunction issue restraining her, her servants and/or agents from causing or permitting or suffering the child:

(a)    to be removed from the Commonwealth of Australia and in this regard all officers of the Australian Federal Police be directed to enforce, if required, the provisions of such order;

(b)    to be removed from the State of Victoria; and/or

(c)    to reside at any place other than his present residential address or any other residence at which the applicant has agreed that the child may reside;

(d)    attend at any school or educational institution other than the school or institution at which the child is enrolled.

(6)That the passport of the child currently held by the Registrar of the Family Court of Australia pursuant to Order 17 of the Orders made by this court on 15 March 2018 be given to the Respondent Mother upon request and presentation of this Order.

(7)Until a letter from an officer of the Department of Health and Human Services, State Central Authority is received by the Australian Federal Police advising of the travel arrangements made for the child’s return to Turkey, the Australian Federal Police retain the name of the child X on the airport watch list enforced at all points of arrival and departure in the Commonwealth of Australia.

(8)A sealed copy of these orders be provided forthwith to the Marshal of the Family Court of Australia, the Commissioner of the Federal Police and the police Forces and services of the States and Territories of the Commonwealth of Australia and the Secretary of the Commonwealth Department of Foreign Affairs and Trade.

(9)The Marshal of the Family Court of Australia and the Commissioner and all Federal Agents of the Australian Federal Police and Officers of the Police Forces and Services of the States and Territories of the Commonwealth of Australia are requested and empowered to take all necessary steps to give effect to these orders.

(10)Liberty to the parties and Father to apply.

(11)The following orders be discharged immediately before the child’s embarkation on the flight home to Turkey:

(a)    Paragraphs 7, 9, 15, 16, 31 of the Order made 15 March 2018;

(b)    Paragraph 5 hereof.

(12)For the avoidance of doubt, the Regulation 26 report by Ms G dated 12 April 2018 may be published by the Respondent Mother and/or Father and/or any representative for the child for the purpose of obtaining advice, giving instructions, and/or participating in negotiation, mediation and proceedings in Turkey and/or applying for legal assistance to do so.

(13)The Form 2 Application filed 15 March 2018 be otherwise dismissed.

IT IS DIRECTED THAT:

(14)This file numbered MLC2807 of 2018 in the matter of State Central Authority & Shanli henceforth travel with the file numbered MLC6414 of 2018 in the matter of Shanli & Shanli (as between the mother and the father and the independent children’s lawyer).

(15)My reasons this day be transcribed and when settled a copy be placed on the Court file.

(16)The minute of orders be marked as Exhibit “B” and remain on the Court file.

IT IS FURTHER ORDERED THAT:

(17)This matter be removed from the docket of the Honourable Justice Bennett.

IT IS NOTED that the mother is required to purchase airline tickets for herself and the child, such purchase to be within 14 days of the making of this Order and the child is to be returned to Turkey by not later than 10 July 2018.

“ANNEXURE – THE PARENTING ORDER”

FAMILY LAW ACT 1975 IN THE FAMILY COURT OF AUSTRALIA AT MELBOURNE File No (P)MLC6414/2018 Travelling with file No (P)MLC2807/2018  – State Central Authority & Shanli BETWEEN
Ebejer & Associates	Ms SHANLI	(Applicant)
AND
Mr Shanli TURKEY	Mr SHANLI	(Respondent)
AND
Victoria Legal Aid MELBOURNE	Independent Children's Lawyer
ORDER 8 June 2018 PREPARED IN THE REGISTRY

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA

AT MELBOURNE   File No. (P)MLC6414/2018
Travelling with file No (P)MLC2807/2018
 – State Central Authority & Shanli

BETWEEN

MS SHANLI
  (Applicant)
AND

MR SHANLI
  (Respondent)
AND

INDEPENDENT CHILDREN'S LAWYER

Before The Honourable Justice Bennett

8 June 2018 

UPON APPLICATION made to the Court AND UPON HEARING Ms Ebejer, Solicitor, appearing on behalf of the Applicant Wife, the Respondent Husband appearing on his own behalf with the assistance of an interpreter of the Turkish language and Ms Smith, Solicitor, appearing as the Independent Children’s Lawyer

IT IS ORDERED THAT

1.I relieve the mother and the father from compliance with the Family Law Rules 2004 insofar as the filing of a written application and affidavit material in support is concerned.

2.I permit the mother and the father to make an oral application for parenting orders and waive any fees attached to such application.

3.I permit the father to participate in the proceedings by telephone link between this Registry of the Court and Turkey NOTING THAT the father is participating with the assistance of a Turkish interpreter.

IT IS DIRECTED:

4.The father’s address for service be noted in the Court records as E Street, City T, Turkey.

IT IS FURTHER ORDERED UNTIL FURTHER ORDER OF A COURT OF COMPETENT JURISDICITION THAT:

5.Within 14 days of these orders the Mother purchase for herself and the child X born 21 January 2007 (“the child”) economy airline tickets for return to Turkey and provide details of the tickets and itinerary to the father, the State Central Authority and the independent children’s lawyer.

6.The father pay the costs of the mother and child’s accommodation for a separate residence in Antalya for a period of six months from the date of return. In the event the father and mother do not reach agreement on the proposed residence, the mother is to nominate three suitable available premises of no less amenity and standard as E Street, City T, in the area which the mother chooses to live, and the father can choose one.

7.The child X born … 2007 live with the mother.

8.The father not remove or retain the child from the mother’s care except in accordance with written agreement between the mother and father.

9.The father have contact with the child at times as agreed between the father and mother and failing agreement by FaceTime/Skype/telephone between 6 PM and 7 PM each day.

10.Upon the child’s return to Turkey, the mother and father do all acts and things to ensure the child will be enrolled at a school agreed between the mother and father and in default of agreement, a school chosen by the mother in the town in which the child is living.

11.The father not cause (directly or indirectly) permit or suffer any criminal prosecution or civil action against the mother arising from the circumstances surrounding her retention of the child from Turkey in Australia in September 2017.

12.The father is restrained by injunction from assaulting, abusing, harassing, threatening or stalking the mother.

13.The father and mother are restrained from exposing the child to adult discussions regarding parenting arrangements for the child.

14.The father and mother their servants or agents are restrained from criticising, belittling or denigrating the other parent in the presence or hearing of the child.

15.This order is made pursuant to s111CD(1)(b)(i) of the Family Law Act (Cth) 1975.

IT IS DIRECTED THAT:

16.This file numbered MLC6414 of 2018 in the matter of Shanli & Shanli (as between the mother and the father and the independent children’s lawyer) MLC2807 of 2018 henceforth travel with the file numbered MLC2807 of 2018 in the matter of State Central Authority & Shanli.

17.The minute of orders as between the mother and the father and signed by the father and handed up by the solicitor for the mother be marked Exhibit “A” and remain on the Court file.

IT IS FURTHER ORDERED THAT:

18.The oral application of the mother be and is hereby otherwise dismissed and this matter removed from the docket of the Honourable Justice Bennett.

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 SCA & Shanli 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 2807 of 2018

STATE CENTRAL AUTHORITY

Applicant

And

MS SHANLI

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

EX TEMPORE REASONS FOR JUDGMENT

1. This matter comes before me to make final orders following the wrongful retention by the respondent mother of the child X born in 2007 in Australia.  The application is brought by the State Central Authority pursuant to The Family Law (Child Abduction Convention) Regulations 1986 (“the Regulations”) which give expression to the provisions of the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (“the 1980 Convention”). The order is for the child to be returned.

2. These reasons explain the resolution as between the applicant and the respondent mother of the Hague return application and the agreement reached by X’s father and the mother about what parenting arrangements for X upon his return to Turkey.  I also discuss why the parents could not avail themselves (and X) of the provisions of the Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (“the 1996 Convention”).

3. X and his mother originally travelled to and entered Australia with the agreement of the father.  They arrived on the 18^th of August 2017 and were to return on or about the 23^rd of September 2017 but failed to do so.  On the 22^nd of January 2018, X’s father, Mr Shanli, made a request to the Central Authority in Turkey pursuant to the 1980 Convention for the return of X to Turkey, which it was alleged was X’s habitual place of residence.  That request was transmitted to the Australian Central Authority under whose delegation the applicant acts.

4. The application was filed in this court on the 15^th of March 2018 and sought the return of X to Turkey.  In due course, the proceedings were served on the mother and she attended court.  The mother was required to file responses and documentation in support of any opposition to return.

5. The principal object of the 1980 Convention is to protect children from the harmful effects of cross-border abductions and wrongful retentions by providing a procedure designed to bring about the prompt return of such children to their state of habitual residence.  It is based on a presumption that, save in exceptional circumstances, the wrongful removal or retention of a child across international boundaries is not in the interests of the child, and that the return of the child to the state of habitual residence will promote his or her interests by allowing that any determination of the issue of custody or access is made by the most appropriate court having regard to the likely availability of all relevant evidence. 

6. The return order is designed to restore the status quo which existed before the wrongful removal or retention, and to deprive the taking parent of any advantage which might otherwise be gained by the abduction.

7. It is an application under r.14(1).  Regulation 16(1) applies so return is mandatory once the court is satisfied of the wrongful removal or retention unless one of the exceptions under r.16(3) applies.

8. On 15 March 2018, I requested that an independent children’s lawyer be appointed to represent X’s interests.  In due course Ms Caroline Smith of Victoria Legal Aid was appointed as the independent children’s lawyer for X within the meaning of Division 10 of Part VII of the Act.  As such her role is to form an independent view, based on available evidence, of what is in the child’s best interests and then act in these proceedings in what she believes to be the best interests of the child.[1]  She is not a legal representative retained by the child and she is not bound by any instructions from the child.[2]  The role of the independent children’s lawyer is to deal impartially with the parties, to ensure that any views expressed by the child are fully put before the court, 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[3] and to facilitate an agreed resolution of matters at issue in the proceedings to the extent that it is in the best interests of the child to do so.[4]

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

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

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

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

9. The role of the independent children's lawyer is to represent the child’s interests within the confines imposed by proceedings of this nature, which are forum selection proceedings, to ensure that the proceedings are run consistently with the child’s best interests.  That is, as quickly and in as streamlined a way as possible whilst ensuring that all necessary information is known to the Court before any final determination is made. At the conclusion of these reasons I set out particular matters to which the independent children’s lawyer attended.

10. As I have mentioned, there was a family report or, more particularly, a Regulation 26 report prepared in this matter by a family consultant who was employed by the Court.  Amongst the questions that were directed to the family consultant there were the following on which she was required to express an opinion:

    a)Whether between 15 March 2008 and the final hearing there should be electronic communication between X and his father;

    b)To ask the child (and report his response):-

    i.If the court orders that that child be returned to Turkey, is there anything that would make the return easier for the child;

    ii.If the court refuses the application for return is there anything that would make staying in Australia easer for the child?

    c)Any other matter which the family consultant considers bears on the interest of the child and ought to be brought to the attention of the Court.

11. In due course, the Hague Convention Report was published on 12 April 2018 and the copy is available to all parties.

12. When the matter was mentioned before me on 13 April 2018, the respondent mother maintained her opposition to X’s return to Turkey but had not filed the documents which were required of her and had not obtained legal representation.  She told the Court that she had attended upon lawyers who had told her that she was not entitled to legal aid and she thought she had no other alternative source of legal advice. 

13. It is a great pity that respondents to return applications cannot be referred to a body of specialist lawyers with extensive experience in applications of this nature.  All too often, respondents rely on “advice” given by migration agents or lawyers who have no understanding of the principles of Hague returns.  The respondents are then left in the lurch without any preparation or material for the hearing. 

14. I moved the final hearing to the 28^th of May 2018 and estimated it would take four days.  The mother had filed, in the meantime, copy documentation from her application for residency from which it was apparent that she had an arguable case to oppose return based on the return placing the child at risk of physical or emotional harm.

15. Prior to the final hearing date which was scheduled for 25 May, the mother and the father undertook specialised Hague mediation arranged by the independent children's lawyer.  This is provided to free of charge to the parents through Victoria Legal Aid, Family Dispute Resolution Service.  The parents came to an agreement that the mother and child would return to Turkey.  There were certain terms agreed between the mother and the father which were reduced to a memorandum of understanding.  However, as with most international cases of this nature, the agreement was required to be implemented in both countries, particularly in relation to what will happen to X immediately upon his return to Turkey.  This is so that X would be subjected to the least amount of disruption and uncertainty upon return.  It was agreed he will continue to live with the mother and he will see or communicate with the father and that these arrangements would pertain until a court of competent jurisdiction in Turkey orders otherwise.

1. Regulation 15(1)(b) and (c) provides that the Court may, if it is satisfied that it is desirable to do so, make any order or impose any condition “that the court considers to be appropriate to give effect to the Convention.”  These arrangements are often called “safe harbour orders” or “safe harbour arrangements” and typically set up conditions in the child's country of habitual residence to safeguard the child upon his or her return until the parents resolve parenting arrangements or a court of appropriate jurisdiction become seized of the matter.

2. There is another relevant Convention, which I should mention, The Hague Convention of 1996 on the International Protection of Children[5] (“the 1996 Convention”) which entered into force between Australia and Turkey on the 1^st of February 2017.

   [5] The full name of the convention is “The Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children”. 

3. The purpose of the 1996 Convention is to harmonise private international law in relation to children.  In particular, and relevantly for this case, to eradicate the potential for conflicting decisions to be made in two countries and recognise and render enforceable orders in the country where the child is present (Australia) and the country where the child belongs (Turkey). 

4. The 1996 Convention has uniform rules determining which country authorities are competent to take the necessary measures of protection. “Measures of protection” are largely synonymous with parenting orders for parental responsibility, residence, spending time and communications. These rules give the primary responsibility to the courts of the country of the child’s habitual residence to take measures (make parenting orders) about children. These provisions are implemented into Australian law by s111CD of the Family Law Act 1975.

5. There is also certain non primary jurisdiction.  Article 11 allows any country, here Australia, in which the child is present to take necessary emergency or provisional measures for protection of the child.

6. The Family Law Act 1975 Part XIIIAA – Division 4 – International protection of children of the Act implements the 1996 Convention into Australian law. The state of habitual residence, Turkey, has preeminent jurisdiction over the children under Article 7 of the 1996 Convention. Section 111CE of the Act prohibits me making anything other than an “urgent” order in this proceeding. An urgent order can be made under s.111CD(1)(b) of the Act. The concept of “urgency” under the 1996 Convention is autonomous. The learned authors Prof. Nigel Lowe QC (Hon.) and Michael Nicholls QC[6] state that interpretation of “urgency” is a matter for competent authorities within contracting states.  I agree.  A useful approach is “to consider whether the child is likely to suffer irreparable harm or have his or her protection of interests compromised if the measure is not taken to protect him/her in the period that is likely to elapse before authorities with general jurisdiction under Article 5 to 10 can take necessary measures of protection.”  Lowe and Nicholls observe[7]:-

   Article 11 in particular can be very usefully employed to help protect the child following the making of a return order. One of the fears when making a return order under the 1980 Convention is that the child might not be adequately protected on return and to this end, various devices. Such as mirror orders or safe harbour orders or undertakings have been employed. [..] Art 11 adds to these powers be enabling the courts to make interim orders in cases of urgency which will have effect extra territorial effect  until superseded by an order in the ‘home’ jurisdiction, so as to, in the Handbook’s words:

   ‘ensure the safe return of the child and to ensure the child’s continued protection in the requesting Contractual State (until the authorities in that Contracting State can act to protect the child).”

   [6] The 1996 Hague Convention on the Protection of Children, Jordan Publishing Ltd 2012 [3.23] to [3.29] inclusive

   [7] Op cit [7.11]

7. The revised Practical Handbook on the Operation of the 1996 Convention drawn up by the Permanent Bureau suggests[8] that a useful approach may be:

   “to consider whether the child is likely to suffer irreparable harm or to have his/her protection of interests compromised if a measure is not taken to protect him/her in the period that is likely to elapse before the authorities with general jurisdiction under Articles 5 to 10 can take the measures of protection.”

   The United Kingdom Supreme court decision of Re J (A Child) (1996 Hague Convention)(Morocco) [2015] UKSC70 gives an unrestrictive interpretation of urgency.

   [8] Paragraph 6.2, quoted by Lowe & Nicholls supra [3.27]

8. The 1996 Convention and also provides for the recognition and enforcement of measures taken in one contracting state, such as Australia, in all other contracting states, such as Turkey.  In addition, the co-operation provisions of the 1996 Convention provide the basic framework for an exchange of information and for a necessary degree of collaboration between child protection authorities in different contracting states.

9. The 1996 Convention adds to the efficacy of any temporary protective measures (parenting arrangements) ordered by a judge when returning a child to the country from which the child was taken or retained.  It does so by making such orders enforceable in that country until such time as the authorities in the country of habitual residence are able themselves to put in place necessary protections and parenting arrangements.

10. Article 23 provides that measures (orders or parenting arrangements) taken by the authorities of a contracting state (such as this court) shall be recognised by operation of law in all other contracting states.  This means that an order made by me in Melbourne is to be recognised by operation of law in, say, Istanbul without any recourse to courts or the institution of further court proceedings here or in Turkey.  However, recognition is not the same as enforceability. There are certain bases upon which recognition can be refused, and they are largely requirements of procedural fairness set out in Article 23(2).  None of those appear to apply to this case but it is a question for the courts in Turkey to decide.

11. Article 26 provides that if a measure (order) is taken in one contracting state, like Australia and require enforcement in another contracting state, like Turkey, the measures shall, upon request by an interested party, be declared to be enforceable or registered for the purpose of enforcement in the other state according to the procedure provided by the law of the latter state. Importantly, Article 26(2) provides that each contracting state shall apply to the declaration of enforceability or registration for the purpose of enforcement a “simple and rapid procedure”. In our legislation, that is Regulation 12 of the Regulations and s.111CT of the Act.

12. Article 28 of the Convention provides that measures, orders or parenting arrangements, taken in one contracting state, like Australia and declared enforceable or registered for the purpose of enforcement in another contracting state, like Turkey, “shall be enforced in the latter state as if they had been taken by the authorities of that state. Enforcement takes place in accordance with the law of the requested state to the extent provided by such law, taking into consideration the best interests of the child.” This is implemented in Australia by s 111CT(2) of the Act.

13. The mother and father in this case have settled upon the terms of the measure to be taken and wanted it rendered enforceable in Turkey.  However, through direct judicial communication it was ascertained that Turkey has no “simple and rapid procedure” for a declaration of enforceability or registration for the purpose of enforcement.  This is a serious lapse in the operation of the Convention between Australia and Turkey.

14. I have been informed from the Bar table, and it appears to be a matter of common agreement, that for any orders to be made enforceable in Turkey in relation to X at this stage, either the mother or father would have to institute proceedings in a court of appropriate jurisdiction in Turkey.  Apparently both parents want to avoid taking any proceedings in Turkey. 

15. In this case, and due to there being no streamlined procedure for enforceability in Turkey, there will be no orders which are immediately enforceable upon X’s return to Turkey.  I have made this clear to the mother through her lawyer.  I note that the mother wishes to proceed with the arrangement in any event.  She does not want to take proceedings in Turkey at this point.  And neither, it is said, does the requesting parent. 

16. Both parents say they will abide the agreement in the absence of enforceable orders.  I accept that is the parents’ genuine intention now but if one or other change their mind it is likely to be X who pays the price.

17. There is agreement as to the orders which would be made as between the State Central Authority and the mother and I will proceed to make those orders.

18. The father is in Turkey.  He has no lawyers in Turkey and no lawyers in Australia.  He is linked in by telephone and able to communicate with the court electronically.  I granted him permission to appear notwithstanding that he doesn’t have a notice of address for service and is outside the jurisdiction.  He has given his consent to the parenting order.

19. I will also make orders in proceedings between the mother and the father. I am satisfied that the parenting order is in X’s best interests. For the avoidance of doubt, this parenting order is a measure of protection made under s111CD(1)(b) (i) of the Act. That is, a measure (order) taken in respect of a child who is habitually resident in a convention country (Turkey) but present in Australia where the child’s protection requires taking the measure as a matter of urgency. This Order should be recognised in Turkey pursuant to Article 23, as discussed above.

20. It is my sincere hope that the agreement which provides the context in which the mother has voluntarily agreed to return X to Turkey and to accompany him will be honoured.  It is only because I have been informed that there is no simple and rapid procedure available in Turkey to make the orders to render the agreement between the mother and father enforceable that I have decided to proceed.  If there was any means of the arrangement being made enforceable prior to X leaving Australia within a timely way, I would consider delaying his departure until that had been done.

21. The terms of the orders to which the parents agreed are set out as an annexure to the order and appear between the order made and these reasons.

RECORDED  :  NOT TRANSCRIBED

1. These proceedings have been facilitated to a high degree by the independent children's lawyer, Ms Smith.  Apart from matters that I have already mentioned in these reasons, or are otherwise apparent, she has attended to the following matters:

   a)met with X on two occasions, the first time on 28 March 2018, in the company of the family consultant, and on the second occasion on 10 May 2018.

   b)arranged for the specialised mediation to be undertaken by family dispute resolution services run by Victoria Legal Aid and there were two such sessions which were also attended by Ms Smith;

   c)contacted International Social Service to investigate what supports would be available for the mother upon the return of X and the mother to Turkey;

   d)assisted the mother to complete an application for legal assistance to Victoria Legal Aid and facilitated the mother lodging same so that she was finally able to be represented by a solicitor in these proceedings;

   e)made arrangements in relation to electronic contact between the child and the father, which contact, whilst it had been occurring, became highly problematic, given some statements by the father to the child during Skype time;

   f)arranged for the agreement which was reached by the mother and the father and reduced to writing in Turkish to be translated into English;

   g)formulated questions for the Turkish Central Authority around the agreement reached by the mother and the father for what would occur immediately upon X returning to Turkey;

   h)drafted minutes of orders in relation to the parenting arrangements between the mother and the father.

2. I am confident that the child’s interests were well represented and that Ms Smith’s involvement expedited the proceedings.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 8 June 2018.

Associate: 

Date:  12 September 2018