State Central Authority & Spring-Ernest (No.2)
[2013] FamCA 906
FAMILY COURT OF AUSTRALIA
| STATE CENTRAL AUTHORITY & SPRING-ERNST (NO. 2) | [2013] FamCA 906 |
| FAMILY LAW – CHILD ABDUCTION – HAGUE CONVENTION – wrongful retention – respondent mother agrees that boys aged seven and five years should be returned to the United States – proceedings not able to be finalised because mother has not been able to obtain a visa or entitlement to enter the United States and remain there for the duration of custody and relocation proceedings – humanitarian parole is sole remaining option – delay whilst application for humanitarian parole is processed. FAMILY LAW – CHILD ABDUCTION – HAGUE CONVENTION – if mother cannot accompany the children back to the United States through no fault of her own she reserves right to oppose mandatory return and to assert that return of children will expose boys to grave risk of harm or otherwise place them in an intolerable situation. FAMILY LAW – CHILD ABDUCTION – HAGUE CONVENTION – mediation – role of independent children’s lawyer. FAMILY LAW – CHILD ABDUCTION – HAGUE CONVENTION – International Hague Network of Judges – direct judicial communication. FAMILY LAW – CHILD ABDUCTION – 1996 Hague Convention on the Protection of Children – curtailment of this court’s jurisdiction to make orders about children who are not habitually resident in Australia – different jurisdictional facts of which to be satisfied before parenting orders can be made depending on whether child is habitually resident in a Convention country or a non-Convention country – USA is a non-Convention country. FAMILY LAW – CHILDREN – best interests of children the paramount consideration – proposed orders are in best interests of children. |
| APPLICANT: | State Central Authority |
| RESPONDENT: | Ms Spring-Ernst |
| INDEPENDENT CHILDREN’S LAWYER: | Ms C Smith |
| REQUESTING PARENT / FATHER: | Mr Ernst |
| FILE NUMBER: | MLC | 3927 | of | 2013 |
| DATE DELIVERED: | 19 November 2013 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Bennett J |
| HEARING DATE: | November 18 and 19 2013 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms T Porrit |
| SOLICITOR FOR THE APPLICANT: | Department of Human Services, Legal Services Branch |
| COUNSEL FOR THE RESPONDENT: | Mr D Werner |
| SOLICITOR FOR THE RESPONDENT: | Berger Kordos Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms D Harris |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Victoria Legal Aid |
| SOLICITOR FOR THE REQUESTING PARENT / FATHER MR ERNST: | Kennedy Partners |
Orders
BY CONSENT IT IS ORDERED THAT:
On or before 20 January 2014 J Spring-Ernst (born … 2006) and F Spring-Ernst (born …2008) (“the children”) return to the United States of America accompanied by the respondent (“the mother”).
If mother is able to obtain relevant authorisation to enter the United States of America before 20 January 2014
The mother book and pay for return airline tickets for herself and the children to return to the United States of America not more than 31 days after she receives notice of her permission to enter the United States of America, but on a date not before 6 January 2014.
The Father reimburse the mother for one half of the children’s return flights from Australia to the United States of America within 14 days of their return to the United States of America pursuant to these orders, but not exceeding AUD$1200 per child noting that a return flight may be required for the boys’ re-entry to the United States of America pursuant to their existing visas.
The mother provide an itinerary for the flights to the legal representative for the Central Authority no later than 5 days prior to the date of intended travel.
The mother’s application to enter the United States of America
The mother forthwith do all such things and sign all such documents as may reasonably be required to enable her entry to the United States of America, including if she is eligible, but not limited to:
a)Significant Public Benefit Parole; and/or
b)Humanitarian Parole;
as she may be advised or otherwise by further order of the Court.
The mother do all of the following:
a)By no later than 25 November 2013 provide sufficient instructions to her American immigration attorney to enable her to complete her application for humanitarian parole or such other authorisation to enter the United States of America as advised by her American immigration attorney and provide confirmation of having done this by email to the Applicant State Central Authority and independent children’s lawyer;
b)By no later than 6 December 2013 the mother take all steps to ensure her application is filed with the relevant American authority and provide a copy of her completed application to the Applicant State Central Authority and independent children’s lawyer;
c)By no later than 13 December 2013 the mother provide some evidence to the Applicant State Central Authority and independent children’s lawyer that her application has been received by the relevant American authority and their response, if any;
d)If the children are not returned to the United States of America by 20 January 2014, then by no later than 27 January 2014 the mother file and serve an affidavit setting out the progress of her application for humanitarian parole or such other authorisation to enter the United States of America as advised by her American immigration attorney, including any appointments she may have had or is scheduled to attend; the response, if any, of the relevant authority to her application; or in the absence of any response, evidence from her immigration lawyer as to the reason for the delay;
e)If correspondence is received from the United States Central Authority that the mother has not applied for the appropriate authorisation to enable her entry to the United States of America, the mother is to convey this information to her American immigration attorney within 48 hours and seek their advice;
f)Send to her American immigration attorney a sealed original of these orders within 48 hours of receipt from the Court.
That the mother otherwise keep the parties and the father informed at all times of all steps and developments with respect to her endeavours pursuant to paragraph 5 hereof, including to provide copies of all relevant applications, documents and correspondence within 3 working days of their submission or receipt by her, as the case may be.
That the father forthwith do all such things as may be reasonably required to support the mother’s endeavours, pursuant to paragraph 5 hereof.
The child F’s passport
That the mother and the father do all acts and things necessary to locate and retrieve the passport recently issued for the child F Spring-Ernst born … 2008 from Australia Post and/or the US Consulate in Australia, and deliver same into the possession of the solicitors for the father, Kennedy Partners, who are to hold any passport relating to either child in these proceedings in their capacity as officers of the Court, not to be released to either parent or any party save for in compliance with these or any subsequent orders of this Court.
That if F’s passport is not obtained within 14 days from the date of these orders then the mother and the father do all things as may be required and sign all such documents as may be required to obtain, at the expense of the father, a new passport for F as a matter of urgency and arrange for F’s visa for entry to the United States of America to be reissued, with any new passport to then be held by Kennedy Partners in accordance with paragraph 9 above.
That upon the mother providing evidence of her compliance with paragraphs 2 and 4 hereof and her obtaining authorisation to enter the United States of America, and providing a copy of the children’s flight itinerary, the mother be permitted to attend at the office of Kennedy Partners to collect the children’s passports, for the purpose of their return to the United States of America.
Father’s time with the children
That the children spend time with the father in Australia:
a)From 4:30pm until 7:30pm on Tuesday 19 November 2013; and
b)From 10am until 7:30pm on Wednesday 20 November 2013 with the child J to miss school on that day and the mother to notify his classroom teacher in advance;
c)With the mother to deliver the boys at the commencement of each occasion and the father to return them, in accordance with the changeover arrangements provided in the orders on 11 November 2013.
That upon the children’s return to the United States of America, and pending further consideration and determination by the Superior Court of the State of Washington Pierce County (“the Washington Court”), or other competent court, on the merits, the children spend time with the father commencing on the first Tuesday after arrival provided that the Tuesday is not less than 5 days following the arrival of the children in the United States of America:
a)Week one : Tuesday 3pm – 6pm and Wednesday 3pm – 6pm;
b)Week two : Tuesday 3pm – 6pm and Wednesday 3pm – 6pm;
c)Week three: Tuesday 3pm – 7pm and Wednesday 3pm – 7pm;
d)Week four : Tuesday 3pm – 7pm and Wednesday 3pm – 7pm and Saturday 11am – 4pm;
e)Week five: Friday 3pm – 7pm and Saturday 11am – 4pm;
f)Week six: Thursday 3pm – 7pm and Friday 3pm – Saturday 12 midday;
g)Week seven: Thursday 3pm – 7pm and Friday 3pm – Saturday 5pm;
h)Thereafter in alternate weeks as follows:
I.Week eight and alternate weeks thereafter: Tuesday 3pm – 7pm and Wednesday 3pm – 7pm;
II.Week nine and alternate weeks thereafter: Friday 3pm – Sunday 5pm.
That the children otherwise live with the mother in Australia and the United States of America until further order.
That the mother facilitate the children communicating with the father by Skype:
a)While the children are in Australia, on each Monday, Wednesday and Friday at 8:30am Melbourne time and on each Sunday at 4pm Melbourne time;
b)While the children are in the United States of America, as per 13(a) above but in American time, on days that the children will not otherwise be spending time with the father;
c)At such other reasonable times as the parties may agree or upon the request of either or both of the children;
d)And that the mother arrange for Skype by video if possible (and otherwise by voice) and afford the children privacy during the communications save as her assistance may be required to establish a Skype connection.
If the children are staying overnight with the father, he facilitate them calling the mother by telephone at or around 7pm on Friday and Saturday evenings.
That until further order of the Washington Court, the children attend at C Elementary School upon their return to the United States of America.
Proceedings in the United States of America
That the mother and the father forthwith do all such acts and things as may be required to request that the Washington Court make orders reflecting paragraphs 13 to 17 of these orders pending further determination by the Washington Court.
Without limiting paragraph 18, the father and/or the mother provide to the Washington Court prior to the commencement of the parenting proceedings there:
a)a copy of these orders; and
b)a copy of my reasons for decision this day; and
c)Ms E’s report dated 31 July 2013; and
d)Dr X’s psychiatric assessment report dated 13 November 2013.
Appointment with Dr X
That the Independent Children’s Lawyer forthwith arrange a meeting for the mother and the father and the children to attend with Dr X for the purposes of explaining the effect of these orders to the children insofar as they relate to the children’s interim care arrangements and return to the United States, as recommended by Dr X in his psychiatric assessment report dated 13 November 2013. The mother and father to meet the cost of such meeting equally.
That Dr X be requested to schedule the above meeting before the father’s departure from Australia on the morning of 21 November 2013 and if that cannot be achieved, then the father participate by Skype.
Injunction
That until further order the father be and is hereby restrained from commencing or continuing or giving evidence in support of any criminal prosecution of the Mother or civil or contempt proceeding in respect of her failure to return the Children to the United States of America between January 2013 and the date of these orders.
Procedural orders
The parties otherwise have liberty to apply on short notice in relation to the implementation of these orders so that the matter is relisted by arrangement with the associate to Her Honour Justice Bennett, for matters including orders in relation to adducing further evidence about the avenues available to the mother for re-entry into the United States of America, whether by the Significant Public Benefit Parole or otherwise.
The appointment of the independent children’s lawyer is discharged upon the children’s return to the United States of America but not before.
Upon compliance by the mother with order 11 above, order 1 of the orders made by Senior Registrar Fitzgibbons on 4 June 2013 is discharged.
The proceeding be listed for mention before Justice Bennett on Friday 7 February 2014 for any of the following purposes:
a)If the children have been returned to the United States of America by this date, and there is no appearance by any party, the proceedings stand dismissed; or
b)If the mother has not returned the children to the United States of America, directions to be given as to the future course of the proceeding.
If the mother has not returned the children to the United States of America by 20 January 2014, this matter be fixed for further defended hearing subject to further order of the Court.
NOTATION
A.For the avoidance of doubt, if the mother has not returned the children by 7 February 2014 and cannot provide a reasonable explanation as to why she has not obtained the relevant authorisation for her entry to the United States of America, the Applicant will be asking the Court to set a trial date to determine whether the children ought to be returned in the absence of the mother.
B.The mother has instructed her American immigration attorney to apply for a humanitarian parole in accordance with their advice
IT IS NOTED that publication of this judgment by this Court under the pseudonym SCA & Spring-Ernst 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 3927 of 2013
| State Central Authority |
Applicant
And
| Ms Spring-Ernst |
Respondent
And
Independent Children’s Lawyer
And
Mr Ernst
Requesting Parent / Father
REASONS FOR JUDGMENT
(ex tempore)
I have pronounced an Order in these proceedings under the Part 3 of the Family Law (Child Abduction Convention) Regulations 1986 (“the Regulations”) for the return of the children, J Spring-Ernst born in 2006 and F Spring-Ernst born in 2008 (“the children”) to the United States of America. The Order is expressed to not be a final order and the matter is adjourned for mention to 7 February 2013. The terms of the Order were agreed to by the applicant State Central Authority, the respondent mother and the independent children’s lawyer. The requesting parent, the father, is present in court and represented by Ms Humphries, solicitor, and he has no difficulty with the resolution. The Order includes parenting orders about the children which requires some consideration of Australia’s implementation of the 1996 Child Protection Convention, given that the children are habitually resident in the United States of America. These reasons are intended to make clear the basis upon which I have made the Order, by consent.
The Regulations implement the Convention on the Civil Aspects of International Child Abduction signed at The Hague on 25 October 1980 (“the 1980 Convention”). The 1980 Convention entered into force between the United States and Australia on 1 July 1988.
At this point the respondent mother concedes that the children are wrongfully retained by her in Australia within the meaning of reg 16(1A) and that the application is brought within one year of the retention. The issues are around whether an exception to mandatory return applies and, if it does, whether the court should exercise the discretion that then arises to refuse to return the children to the United States.
The mother agrees:-
a)that the children will be returned to the United States of America pursuant to the Regulations; and
b)she will do everything necessary to obtain entry for herself into the United States of America by way of an humanitarian visa or otherwise; and
c)that she will accompany the children to United States.
It is anticipated that the mother will be able to obtain a visa for herself within the next two months, by 20 January 2014, whereupon she will depart Australia with the children and return with them to the United States. These proceedings have been adjourned to 7 February 2014 in the expectation that the children and the mother will be back in the United States by that time and all the proceedings here can then be dismissed[1].
[1] These proceedings under the Regulations for the return of the children to the United States and the parenting proceedings which the mother issued against the father on 20 May 2013.
The adjournment to 7 February 2013 is for mention only. However I anticipate being able to fix the matter for final determination promptly in the event that the children are still in Australia.
Mother’s ability to accompany the boys back to United States if return order is made and the possible significance of the mother not being permitted to re-enter and remain in the United States
The children’s visas are in order for the time being. There will be no difficulty with the boys gaining entry into the United States if it is ordered that they be returned there.
The reason that these proceedings cannot be finalised at this stage is that it is beyond the power of this court, the applicant or either parent to ensure that the mother will be able to enter the United States.
The type of visa or parole to which the mother may be entitled has been discussed in Court in imprecise and somewhat vague terms. The mother has adduced some evidence by an affidavit of her attorney, Sok-Khieng Lim, sworn or affirmed on 14 November 2013 in which her attorney says that, as the mother has been denied a visitor’s visa, she may now apply for humanitarian parole and that he is in the process of preparing that application. He deposes:-
3. Humanitarian parole is used sparingly to bring someone into the United States of America (“US”) who is otherwise inadmissible due to compelling emergency.
4. Humanitarian parole is a final option for an applicant to enter the US who is otherwise ineligible for a visa. Citizenship and Immigration Services (“USCIS”) has the discretion to parole an individual into the US temporarily on a case-by-case basis for urgent humanitarian reasons or significant public benefit.. Humanitarian parole is an extraordinary measure, to be used sparingly, and may not be used to circumvent normal visa-issuing procedures. Parole does not grant any immigration benefits, but may allow an applicant to receive employment authorization.
5. Humanitarian parole may only be requested for persons who are outside the US and who cannot obtain the necessary admission documents from the Department of State. Anyone can file an application for humanitarian parole, including the prospective parolee, a sponsoring relative, or an attorney on behalf of an applicant.
6. The humanitarian parole must be filed through the mail with the U.S. Department of Homeland Security. [The mother] is required to complete and sign the I-131 Humanitarian Parole form and I-134 Affidavit in Support and forward the original form to me to enable me to file the petition for her. The filing fee is $360 and it is filed in the U.S. with the Department of Homeland Security. [The mother] will need to submit an affidavit stating an emergency and/or urgent reason to enter the U.S., along with the Court order and court hearing notices, to show why she needs to be paroled into the US to attend the hearings as well as a copy of the recent visiting visa application denial to demonstrate that she made an effort to come in through a visa.
7. In my experience, the I-131 humanitarian parole can take anywhere from 4-8 months to be processed, even though the USCIS advise it will take 90-120 days from the receipt of the application.
8. On 13 November 2013 [the mother] instructed me to prepare the petition for I-131 humanitarian parole. I am in the process of preparing the petition.
I note that Mr Lim’s estimate of time to obtain humanitarian parole is some four to eight months. Of course, there is no guarantee that the parole will be forthcoming. The next court date for parenting proceedings in the United States is, I am informed, 24 February 2014. Therefore, I am concerned about the delay in processing the mother’s application for a right to enter the United States beyond 20 January 2013.
These are child abduction proceedings under the 1980 Convention, as implemented in Australia, and as in force between Australia and the United States. The 1980 Convention is a forum selection treaty. The proceedings must be run without delay and the relief must be implemented promptly. The efficacy and, indeed the justification, for returning children to their place of habitual residence without consideration of their best interests, is that the return of the children will be immediate or, if not immediate, then prompt. It is appropriately referred to as a hot pursuit remedy[2]. These children have now been away from the United States for 11 months. Apart from an initial delay prior to the matter being transferred to me, these proceedings have progressed as quickly as possible having regard to the unusual features of regularising the mother’s ability to take baby of her new relationship to the United States and the psychiatric assessment of the child J.
[2] Many such references follow Re C (Abduction: Grave Risk of Physical or Psychological Harm) [1999] 2 FLR478 at 488 per Thorpe LJ
The parties acknowledge that they must now ascertain the mother’s entitlement to enter and remain in the United States as a matter of some urgency and that, as the mother’s applications for all other visas have been declined, humanitarian parole is the sole remaining possibility for her entry into the United States.
If, after making all necessary applications, the mother is not permitted entry into the United States by 20 January 2014, it is anticipated that the mother will resist the return of the children without her and run her case accordingly. She contends that the exception under reg. 16(3)(b) applies and that this court should exercise its discretion to refuse return.
In particular, the respondent mother asserts that the return of the children to the United States, without her, would expose the children to a grave risk of harm or otherwise place the children in an intolerable situation. This is by reason of the children’s separation from her and the extreme emotional and psychological distress to J which has been identified by Dr X, consultant psychiatrist. Furthermore that the mother’s inability to appear personally before the courts in the United States to participate in parenting proceedings, the next hearing for which is on 23 February 2014, is intolerable, presumably because she would not be in court to observe and participate in the proceedings directly and the outcome would not be fair.
If the mother does not return to the United States by 20 January 2014, the applicant State Central Authority reserves its rights to contend that the children should be returned to the United States without the mother.
It follows that the capacity of the mother to enter the United States is likely to be of pivotal importance to whether the children will be required to return to the United States at all.
The mother will not be permitted to frustrate the return of the children by not accompanying them of her own volition or because she has pursued humanitarian parole less assiduously than she could have done. The mother contends that it is an entirely different matter if she does everything within her power to return to the United States but is prevented from entering by the United States authorities. The mother relies upon the unreported decision of Joske J in State Central Authority v Ardito[3], in which his Honour said at paragraph 40:
In my view the fact that the respondent is unable to gain entry into the United States for the purposes of appearing in these proceedings, amounts to what can only be described as a serious denial of natural justice. The right to be heard is a fundamental requirement of natural justice … Accordingly, I am of the opinion that the fact that the respondent has been denied entry into the United States constitutes a grave, or in this case an almost certain risk that the child Bittany was placed in an intolerable situation.
[3] State Central Authority v Ardito (unreported 29 October 1997)
In Director-General, DFYCC (Qld) v Hobbs [1999] FamCA 2059, Lindenmayer J described the mother in Ardito as being “precluded, as a matter of law, from entering the United States and contesting the proceedings.” Joske J was thus said to have:
[…] ultimately concluded that it would place the child in an intolerable position if, having been ordered to be returned to the United States, the child’s mother would be precluded, as a matter of law, from appearing here and contesting the issue of her custody.
The facts of the case are set out in my reasons for decision on 24 June 2013 (case neutral citation [2013] FamCA 653). I will not repeat the facts here. It is sufficient to say that the father, mother and the boys are Australian citizens who are living in the United States where the parents have business interests. None is a citizen of the United States of America. The boys were subject to orders for a week about custody arrangement, against which decision the wife appealed, when the father agreed that the boys could holiday in Australia with the mother in 2011/12. The mother did not return the boys to the United States on 12 January 2013, as agreed. When the mother and boys did attempt to enter the United States they were not permitted to do so. They were turned away at the border and required to return to Australia where they remain. The father and the applicant State Central Authority allege that the mother sabotaged her re-entry into the Unites States by giving problematic responses to questions or by not having taken sufficient steps to secure her eligibility to return prior to leaving the United States. Since wrongfully retaining the boys in Australia, the mother has given birth to a child of her subsequent relationship with a childhood sweetheart. The father of the baby is an Australian citizen who does not wish to live in America and whose life, he and the mother say, is based in Australia and involves his own business and young children from his marriage which broke down when he recently became reacquainted with the respondent mother. The father of J and F has two children from his earlier relationship with his step-sister who, like him, is of the Mormon faith. Those children reside in the United States and, whilst the father does not see much of them, he has recently married another woman whose life and work is based in the United States. The father has no inclination to return to live in Australia although he and his wife have travelled to Australia to participate in the hearing and, if they had been permitted to do so, to take J and F home to the United States.
Following the hearing in June 2013, there were a number of developments which I will now briefly describe. These developments necessitated an adjournment of the final hearing of this matter from August 2013 to 20 November 2013.
In June 2013, the mother asserted that her partner, Mr S, would not permit her to remove their baby, N S born in June 2013, from Australia so that she could accompany the boys J and F back to the United States in the event that I ordered them to return. Mr S was given notice of the proceedings and was ultimately formally served. On 26 July 2013 Mr S filed an initiating application[4], naming the mother as the respondent and seeking to restrain the mother from removing the baby from Australia and that the baby’s details be placed on the Watch List maintained by the Australian Federal Police in force at all points of arrival and departure by air or sea in Australia with the effect that the baby N would not be permitted to leave Australia.
[4] File No MLC6335 of 2013
On 1 August 2013, I made certain procedural orders in the proceedings between the mother and Mr S including requesting the appointment of an independent children’s lawyer for the baby N and preparation of a Family Report on the issue of the mother’s temporary or permanent relocation of him to the United States in the event that she was not successful in defeating the application of the State Central Authority. Otherwise the matter was referred to the Deputy Chief Justice so that judge other than myself could be allocated to hear and determine the relocation proceedings. A week before Justice Le Peor Trench of the Sydney Registry of this Court was due to commence the hearing in Melbourne, the mother and Mr S came to an agreement which enables the mother to take the baby to the United States so that she could, if she wants to, accompany the boys there. I made an Order finalising those proceedings, by consent, on 27 August 2013. As a consequence, the mother’s right to take the baby with her is subject only to the provision of a comprehensive itinerary with all contact details and fully paid return tickets to fly. As recently as 11 and 20 November 2013 counsel for the mother confirmed that Mr S will not present any obstacle to the mother removing the baby to the United States if she wants, reluctantly, to return.
We are a national court but I well understand how difficult it is to ask judges to leave to travel interstate to hear a case at very short notice. It was indeed fortunate that our Deputy Chief Justice could arrange for Justice Le Peor Trench to be available.
Psychiatric assessment of the child J (seven years old)
The Regulation 26 report which I ordered be prepared in relation to the boys was prepared by Ms E, Family Consultant. It was published on 30 July 2013. I had anticipated that the report would focus on the mother’s assertion that it would be intolerable for the boys to be separated from their baby brother. It did so but it also discussed statements made by J to the effect that he would kill himself if he had to return to the United States. Shortly after the release of the report, the independent children’s lawyer arranged to have the matter listed before me to seek that J be assessed urgently by a child psychiatrist and that the final hearing, scheduled for August 2013, be adjourned.
The family consultant gave limited evidence at the urgent hearing. Ms E was not cross examined at large so I consider that her evidence has not been tested in its entirety.
Ms E is a very experienced psychologist employed by the Court. The Regulation 26 report appears to be a comprehensive and well-reasoned report of 39 pages. It is apparent that, whilst J is only nearly seven years old, Ms E was deeply concerned by his presentation, his expressed intent to kill himself and his plan and rationale to do so. She recommended that J be assessed by a psychiatrist who would be better able to express an opinion on whether J had formed a serious intention to kill himself and had the wherewithal to do so or whether he was making a statement reactively to an outcome which to him feels worse than death. I should also mention that J referred to F dying as well.
The Regulation 26 report needs to be read in its entirety to appreciate the gravity of the situation. The impact of the report was not ameliorated by Ms E’s careful but confident oral evidence. I extract here these few passages which give some indication of the seriousness of the situation:-
115. For [J], death is preferable to separation from his mother and the severity, tone and disposition in which [J] makes these threats indicates that an excess of caution is required in resolving this matter as well as a thorough investigation and a period of remediation before marginalising these statements. [J’s] reflection that he has not confided these thoughts in his mother and the range and extent of his thinking on this topic indicate that this is his solution alone to what is for him an appalling and unappealing dilemma.
116. [The father] however continues to sustain his general belief that [the mother] has generated all these difficulties for both children and [J] in particular. However, the parental dispute needs to move from parental hostility to focus on the level of distress that each parent has contributed to the children and the psychological damage this has generated for each child and more significantly for [J] and around the specific concerns that [J] has presented.
117. It may be hypothesised that the ontogenesis of the children’s problems lies in the parent’s sustained rage and their on-going exhibition of that rage whilst together and in different forms post separation. This has been exacerbated by the early imposition of a shared parenting agreement in circumstances that violated the most basic requirements of such an agreement, that is that the parents are respectful towards each other and co-operative with negligible conflict and able to be mutually supportive of the children’s needs, they live in close proximity one to the other and such a care arrangement does not disrupt normal attachment processes. In addition, these factors interact with each child’s temperament and [J] is noted to be the more sensitive child closely bonded to his mother. There has been insufficient attention directed towards the age and vulnerability of the children during the time of separation and subsequently there has there little consideration about the impact of the parental separation on the children, the focus has been entirely on the needs of the parents. The children’s vision of their parents at separation would have reflected two combative silos each parenting according to their own whims and not in accord with the needs of the children. A typical approach of both these parents is that each parent reports the awfulness of the early transitions each blaming the other and neither addressing these issues in any manner that even attempts to meet the needs of the children.
Ms E has reservations about the capacity of the parents to cope with J’s challenging behaviour:-
124. Both children are young and if the parents were effective co-parents in [F’s] case his discontent about a possible return could be easily monitored and managed but this would require some degree of change and flexibility from both parents and with such polarised views from each of the parents this appears to be an unlikely scenario.
125. [J’s] issue though is of greater concern as Mr [E] considers that [J] has been manipulated and to hold such a view implies that [J’s] view can be discounted and adopting this strategy presents a considerable, albeit an uncertain risk. [J] has intent and a plan. He has identified the circumstances in which he will consider that he has little option but to act and he has expressed these views consistently. He discriminates between and amongst possible forms of action and he appears to have an understanding of the consequences of his actions. [J’s] reports indicate that he has ruminated without confiding in anyone on this issue for an extended period of time and it remains uncertain as to his capacity to accept and manage change in the context of such a strongly held belief. It is to be noted that in contrast to the reports of both parents this issue did not just arise in May 2013 as suggested, as [J] stated that it has been a consistent part of his thinking, according to his estimates since he was five years of age and his ideas has grown and taken form in the pressure of the current circumstances. [J’s] message is clear; he has been trying to find a solution to what he perceives as his problem and the best option he can generate is death.
126. Aside from the obvious concern about risk to [J] and possibly [F], there needs to be a consideration of the impact of any further fracture to the father-son relationship and the long term effect of forcing children to engage in a course of action to which rightly or wrongly they are so clearly opposed.
Ms E had reservations about the parents generally:-
108. Each parent’s presentation suggests that neither can be relied upon to be an accurate reporter of events either of their relationship or matters concerning the children. Neither parent is able to provide direct or clear answers to questions, each provides a garrulous obfuscation of events designed to overwhelm and persuade the listener and eliminate critical thinking. Each parent is defensive and adversarial, neither capable of consideration of the needs of the other parent nor are they able to co-parent in the best interests of [the children].
109. It is apparent that [the mother] has engaged in inappropriate conversations with the children about adult matters and she has provided them with some direction as to what information they need to supply when questioned by professionals. [J] reports that he is confused about some issues and both children are aware that they should not contradict their mother’s view about some matters. However, these issues are easily discernable and the children are forthcoming and able to distinguish their own views from what “…mum told me”. Such a context does though leave the children burdened by adult issues and confused between the instructions they have received from a loved parent and their own experiences of events. This ‘parental wedge” between the children’s own experiences and those they are required to absorb can create issues with self-esteem, independent thinking and self-validation.
110. It is apparent that [the mother] at the most basic level has not supported the children’s relationship with their father evidenced by her lengthy absences in Australia without any substantive arrangements about on-going contact with their father. [The mother’s] conduct has effectively minimized [the father’s] role and significance in the children’s lives and she appears unable to consider any possible impact of her actions on others, either for the children or [the father]. At no stage did [the mother] reflect on the impact of [the father’s] absence from [the children’s] lives.
111. It is evident that [the father] has not been proactive in resolving issues, that there have been significant delays in any efforts to communicate and as a seasoned traveller at no stage, when he was able to do so, did he arrange to travel to Australia and see [the children].
112. There is some consideration, given [the father’s] explanation of events that he has exhibited controlling behaviours. He suggests that [the mother] is and was non-consultative yet he acknowledged that this was the position he adopted when the parents were engaged in a shared care arrangement and it appears that such behaviour remains current. The need for his decisions to predominate over the welfare and best interests of the children is concerning and indicates a lack of child-focus and a sense of competitiveness that supports his needs to override [the mother’s] decisions but does not necessarily reflect the needs of the children.
113. In the current context, given the severity of [J’s] disclosures caution is required but for [the father] to propose a plan that may involve extended separation of [J] from his mother and or short or long term elimination of [the mother] from [J’s] life and her replacement with Ms [M] as “mother” is a failure to comprehend the mother-son relationship and indicates also that [the father] does not take seriously either the valency of his disclosure or their potential long-term ramifications for [J].
114. [The father] is clearly contemptuous of [the mother], he is highly pejorative about her and currently he has no capacity to accommodate any view she may express as he dismisses these as “…manipulative” and it appears that he has generalised this contempt into disregard about anything he evaluates as emanating from her including this highly charged information about [J].
Ms E’s report and limited oral evidence painted a grim outlook. I adjourned the final hearing until yesterday and required the independent children’s lawyer to make arrangements for J to be assessed by a psychiatrist.
In due course, the entire family was assessed by Dr X, Consultant Psychiatrist. The father is present in Australia with his wife and participated in the assessment. He was observed with both children. Dr X’s report is dated 13 November 2013 and has been tendered in evidence by consent of all parties (Exhibit “ICL1”). It reads as an insightful report but he has not been cross examined so it is untested expert evidence. Dr X describes J in the following terms[5]:-
[…] [J]clearly indicated that the prospect of being separated from his mother to be unacceptable, intolerable and tortuous. He has indicated that he could not cope with being separated from his mother, and in such case would dramatically protest by yelling and becoming violent. He had also felt the need to consider suicide. The reference to suicide seems to reflect his inability to contemplate a situation that he imagines himself to not be able to tolerate, control and solve. Suicide is the medium to escape and terminate the problem. [J’s] suicidal ideation is purely in the context of being separated from his mother. When not confronted by this prospect he does not feel suicidal. Therefore, his suicidal ideation relates to an underlying profound anxiety and fear, rather than a depressed state. His suicidal ideation is contextual and transient depending on his mind state at the time, rather than being pervasive and enduring.
It is very clear that the prospect of returning to the USA for both boys will potentially have a significant impact. The issue seems to mostly or entirely relate to the boys, but particularly [J], fearing being separated from his mother. [J] indicated he would dramatically and violently protest if he was forced to return to the USA. I would consider his threat to be real, as evidence by his behaviour during the session when he was observed with [the father]. Notably, [J] was able to very promptly settle in the company of [the father]. Whilst the quality of relationship seems to be different between the boys and [the father], [J] was clearly able to relax and enjoy being in his company. This indicates that the problem mostly or entirely relates to [J’s] fear of separation from the mother; rather than a hatred of the father as he has indicated. [J] has expressed a hatred for his father, An interpretation is that [J] hates his father for what he perceives he is doing in contributing to the potential separation from his mother; his worst fear.
I would anticipate that, in the event that [J] was separated from his mother in the passage of returning to the USA, it would be very traumatic and potentially seriously traumatic. I would imagine he would experience being separated from his mother and travelling back to the USA with extreme difficulty. If this was to happen I would be concerned that it could have lasting emotional and psychological impact. [J] appears to be a boy with the potential to experience his situation as a catastrophe; rather than simply a difficult problem with a palatable solution. It is very difficult to forecast whether the psychological and emotional impact on [J] in the medium to long-term would continue to be significant, but it is possible it could have a range of lasting effects. Individuals diversely respond to trauma. [J] presents as a particularly sensitive child and I would consider him to be vulnerable to develop enduring problems if these issues are not effectively and relatively promptly resolved.
It would be likely that [J] would engage in similar distressing behaviour as observed in this assessment, but at a much greater and dramatic level. He appears to be a fairly determined and possibly stubborn boy who would likely follow through with his threats. It is very difficult to determine whether he would pose a suicide risk, as I assess his expressed suicidal thoughts to reflect a means of escaping his problem, but it should not be ignored with complacency.
[5] Exhibit “ICL1”: Psychiatric Report to the Court by Dr X dated 13 November 2013, page 17.
The independent children’s lawyer acted entirely appropriately in bringing the matter back on for mention so that J could be assessed.
Mediation
I note also that the independent children’s lawyer arranged mediation for the parties on two occasions. First on in August 2013 with the father participating electronically. Second, on Thursday 14 November 2013 after the father was in Australia. On the second occasion the independent children’s lawyer prevailed upon Dr X to have a preliminary version of his report accessible for the parties and it was.
Both mediations were undertaken by two specialist Hague mediators working together and conducted under the auspices of Victoria Legal Aid at no cost to the parties save for the cost of their own representation.
The mediations did not result in a resolution of the wider family law issue. However, the intention was also for the parents to use the mediation to prepare for adverse as well as favourable outcomes. In particular, to discuss what parenting arrangements ought to apply in the event that the boys are ordered to be repatriated to the United States, given that there will be some delay in the courts in the United States being able to deal with interim proceedings on the merits and significant matters have arisen as to J’s mental health. I also suggested that the parents and independent children’s lawyer address what time the father should spend with the boys whilst he is in Australia.
I understand that the detailed spend time (access) arrangements to which the parents have now agreed emanated principally from the last mediation. The parents had the benefit of the expert assessments of Ms E and Dr X for their negotiations
The independent children’s lawyer was instrumental to mediation. She has extensive experience in these Hague matters and has been ably assisted by Ms Harris of Counsel.
Direct Judicial Communications
In relation to the International Hague Network of Judges (“IHNJ”) generally, the Permanent Bureau of the Hague Conference has recently published a booklet entitled Emerging Guidance regarding the development of the International Hague Network of Judges and General Principles for Judicial Communications, including commonly accepted safeguards for Direct Judicial Communications in specific cases, within the context of the International Hague Network of Judges[6] in which the flexibility of and safeguards around judicial communications are explained. Where in these reasons I make reference to direct judicial communication, it is reference to communications undertaken in accordance with the Emerging Guidance.
[6] (C) Hague Conference on Private International Law 2013.
The first direct judicial communication in this matter occurred in August 2013 to ascertain which United States government agencies should be addressed for evidence about the mother’s entitlement to enter the United States with the boys. The response came from Judge Judith Kreeger, a Network Judge. It was as follows:-
You asked me for information about the children's ability to re-enter the U.S.A. in light of their current visa situation. I gave a summary of the salient facts to one of the attorneys in our central authority, and she provided the following information.
Bear in mind that the issuance of visas to enter the United States is completely within the purview of the Department of Homeland Security, not our Central Authority.
The visa eligibility of the children can only be determined by a consular officer at the time of an actual visa application. The mother would have to take the children to the U.S. Embassy or Consulate and they would have to apply for a visa there. If they are eligible, the visas will be issued. If they do not qualify, they will be denied. There is no such thing as an “emergency visa”. If they do not qualify for a visa, and there are humanitarian concerns, they may be eligible to enter through the humanitarian parole authorization. See: Generally, parents work with their country officer if they are seeking humanitarian parole. Be advised that it is completely within DHS’ discretion whether or not to grant parole.
Our experience has been that TP [taking parent] who do not want to return to the United States generally makes statements that make them ineligible to return to the United States; they often do not keep appointments to complete paper work with the Embassy and avoid that we make to assist them with completing the parole application process. These are just some issues that Judge Bennett should be aware of.
Later, the mother successfully appealed the parenting plan which had been entered in the Superior Court of Washington, County of Pierce, on 23 December 2011 for week about shared care of the boys. However the parties, and the father, could not agree on the implications of the parenting plan having been set aside. The parties agreed, for a second time, to direct judicial communications being undertaken.
The second direct judicial communication was to ascertain the effect of the Unpublished Opinion of the Court of Appeals of the 1 October 2013. The following responses were provided by a judge of Pierce County Superior Court, Dept 7, (the questions are italicised):-
This is in response to your questions about Washington State procedural law presented through Judge Judith Kreeger. I have succeeded Judge Fleming in Dept. 7 of the Superior Court for Pierce County Washington. (Judge Fleming retired at the end of 2012.) Cases that are remanded from the Court of Appeals return to the same trial department – so I now have this case. It is possible that the case will be re-assigned to one of our family law judges, based on the nature of the issues involved. Admittedly, I am not intimately familiar with the case but I will try to answer your questions.
a) What parenting arrangement, if any, applies to the children given the decision of the Court of Appeals of the State of Washington to reverse and remand the child custody determinations in the final parenting plan?
I believe that the temporary/interim parenting plan ordered by the court on September 1, 2011 would again be in effect once the mandate from the Court of Appeals is received. The Court of Appeals ordered a new trial, as you know, and after trial the temporary order may or may not become the permanent order. I am attaching the temporary order.
b) What, if any, steps do the parties need to take to obtain a re-hearing of parenting arrangements in Washington or an interim hearing to determine parenting arrangements pending a re-hearing?
The parties would need to schedule a hearing in my department to propose and offer argument on a different temporary order. If time is of the essence, I have the ability to accelerate hearing the matter, rather than having the parties wait typically 1-3 weeks before their hearing can be held.
c) When a court of competent jurisdiction in the United States of America is likely to be able to consider interim parenting issues on the merits?
If the parties are ready to proceed, a hearing could be rapidly scheduled – within a week or so of the request/motion.
I would also be grateful if you could advise on another question.
d) If the mother and the father are able to agree on an interim parenting arrangement to apply to the children immediately they land in the United States, is it possible to get orders in those terms made in Washington whilst everyone is still in Australia?
Yes, I would be strongly inclined to approve an interim/temporary parenting plan agreed upon by both parents, even though a party(ies) is/are in Australia.
Please feel free to communicate directly with me, as you wish.
In accordance with the Emerging Guidance, the communications were published to the parties with only the email addresses, contact details and name of any non-Network judicial officer being obscured. The communications are in evidence. No party sought to adduce evidence in competition with the facts contained in the responses received by direct judicial communication although any party was entitled to do so. I have no doubt that the preparation of this matter for trial has been made easier by the prompt and clear responses received by direct judicial communication.
I will now send a further request to my learned colleague in Pierce County Superior Court to advise that the parents’ lawyers will soon approach that court to have orders made in the terms of paragraphs 13 to 17 of this Order.
The effect of the 1996 Hague Child Protection Convention[7]
[7] 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
This court must be satisfied of certain jurisdictional facts before it can make parenting orders in relation to a child who is not habitually resident in Australia. The jurisdictional facts differ depending on whether the country in which the child is habitually resident is a Convention country or a non-Convention country. A Convention country is a country for whom the 1996 Convention has entered into force with Australia. A non-Convention country is a country for whom the 1996 Convention[8] has not entered into force with Australia.
[8] The full title of the Convention adopted by the Hague Conference on Private International Law and concluded on 19 October 1996 is the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children
It is common ground that the children are habitually resident in the United States.
Australia ratified the 1996 Convention on 29 April 2003. The Act was amended with effect from 1 August 2003 to enable the performance by Australia of its obligations under the 1996 Convention and to obtain for Australia the any advantage or benefit under the Convention. I must consider Part XIIIAA Division 4 (International Protection of Children) of the Family Law Act 1975 (Cth) (“the Act”) which implements into our domestic law provisions of the 1996 Child Protection Convention (“1996 Convention”).
Prior to Australia’s ratification of the 1996 Convention, this court’s power to make orders about a child, including orders with extra territorial effect, was not circumscribed by where the child was habitually resident.
In relation to the original jurisdiction of this Court, s 31(2) of the Act provides:-
Subject to such restrictions and conditions (if any) as are contained in section 111AA[9], the regulations or the standard Rules of Court, the jurisdiction of the Family Court may be exercised in relation to persons or things outside Australia and the Territories.
Note: Division 4 of Part XIIIAA (International protection of children) may affect the jurisdiction of the Court.
[9] Section 111AA relates to maintenance obligations with New Zealand
Section 69E of the Act provides that:-
(1) Proceedings may be instituted under this Act in relation to a child only if:
(a) the child is present in Australia on the relevant day (as defined in subsection (2)); or
(b) the child is an Australian citizen, or is ordinarily resident in Australia, on the relevant day; or
(c) a parent of the child is an Australian citizen, is ordinarily resident in Australia, or is present in Australia, on the relevant day; or
(d) a party to the proceedings is an Australian citizen, is ordinarily resident in Australia, or is present in Australia, on the relevant day; or
(e) it would be in accordance with a treaty or arrangement in force between Australia and an overseas jurisdiction, or the common law rules of private international law, for the court to exercise jurisdiction in the proceedings.
(2) In this section:
relevant day, in relation to proceedings, means:
(a) if the application instituting the proceedings is filed in a court—the day on which the application is filed; or
(b) in any other case—the day on which the application instituting the proceedings is made.
Note: Division 4 of Part XIIIAA (International protection of children) has effect despite this section.
Subdivision B of Division 4 of Part XIIIAA relates to, and is headed, “Jurisdiction for the person of a child”. Section 111CC provides under the heading “Application of this Subdivision”, that:-
(1) This Subdivision applies only if an issue under this Act is whether a court, as opposed to any of the following authorities, has jurisdiction to take measures directed to the protection of the person of a child:
(a) a central authority or competent authority of a Convention country;
(b) a competent authority of a non-Convention country.
Section 111CD provides:-
Jurisdiction relating to the person of a child
(1)A court may exercise jurisdiction for a Commonwealth personal protection measure only in relation to:
(a)a child who is present and habitually resident in Australia; or
(b)a child who is present in Australia and habitually resident in a Convention country, if:
(i)the child's protection requires taking the measure as a matter of urgency; or
(ii)the measure is provisional and limited in its territorial effect to Australia; or
(iii)the child is a refugee child; or
iv)a request to assume jurisdiction is made to the court by, or at the invitation of, a competent authority of the country of the child's habitual residence; or
(v)a competent authority of the country of the child's habitual residence agrees to the court assuming jurisdiction; or
(vi)the court is exercising jurisdiction in proceedings concerning the divorce or separation of the child's parents or the annulment of their marriage (but see subsection (3)); or
(c)a child who is present in a Convention country, if:
(i) the child is habitually resident in Australia; or
(ii) the child has been wrongfully removed from or retained outside Australia and the court keeps jurisdiction under Article 7 of the Child Protection Convention; or
(iii) a request to assume jurisdiction is made to the court by, or at the invitation of, a competent authority of the country of the child's habitual residence or country of refuge; or
(iv) a competent authority of the country of the child's habitual residence or country of refuge agrees to the court assuming jurisdiction; or
(v) the child is habitually resident in a Convention country and the court is exercising jurisdiction in proceedings concerning the divorce or separation of the child's parents or the annulment of their marriage (but see subsection (3)); or
(d)a child who is present in Australia and is a refugee child; or
(e)a child who is present in a non-Convention country, if:
(i) the child is habitually resident in Australia; and
(ii) any of paragraphs 69E(1)(b) to (e) applies to the child; or
(f)a child who is present in Australia, if:
(i) the child is habitually resident in a non-Convention country; and
(ii) any of paragraphs 69E(1)(b) to (e) applies to the child.
(2)A court may only exercise jurisdiction in accordance with subparagraph (1)(b)(ii) if the measure is not incompatible with a foreign measure already taken by a competent authority of a Convention country under Articles 5 to 10 of the Child Protection Convention.
(3)A court may only exercise jurisdiction in accordance with subparagraph (1)(b)(vi) or (c)(v) for a Commonwealth personal protection measure relating to a child if:
(a)one or both of the child's parents are habitually resident in Australia when the proceedings referred to in that subparagraph begin; and
(b)one or both of the parents have parental responsibility for the child; and
(c)the jurisdiction of the court to take the measure is accepted by the parents and each other person with parental responsibility for the child; and
(d)the exercise of jurisdiction to take the measure is in the best interests of the child; and
(e)the proceedings on the application for divorce or separation of the child's parents or the annulment of their marriage have not been finalised.
(4)Paragraphs 111CD(1)(a) to (d) are subject to the limitations in sections 111CE, 111CF and 111CH.
In relation to what constitutes a Commonwealth personal protection measure, I incorporate into these reasons the discussion of relevant definitions which appear separately as Annexure “A” to these reasons. It is clear that Commonwealth personal protection measure, as referred to in s 111CD(1) of the Act for the implementation of the 1996 Convention includes, a parenting order as defined by s 64B(1) and (2) of the Act being orders of the kind made today.
Section 111CB(1) of the Act provides that Division 4 of Part XIIIAA has effect despite the rest of the Act, except s 69ZK (Child welfare laws not affected) and s 111B (Convention on the Civil Aspects of International Child Abduction) and the Family Law (Child Abduction Convention) Regulations 1986.
Accordingly, where s 111CD applies to a child, it may operate to restrict the power of a court to make orders in relation to children notwithstanding that the proceedings in which the order is sought could be, and were, validly instituted pursuant to s69E of the Act.
The United States signed the 1996 Convention on 22 October 2010 but has not yet ratified it with the effect that the 1996 Convention has not entered into force between Australia and the United States. Accordingly, for the purpose of s111CD, the United States is a non-Convention country.
The children J and F are:-
·present in Australia;
·habitually resident in a non-Convention country;
·the subject of proceedings that, pursuant to s.69E, validly instituted by virtue of the mother and/or each of the boys being present in, and citizens of, Australia on the day the application was filed (20 May 2013).
I conclude that they are children to whom s111CD(1)(f) applies.
I am satisfied that the court can exercise jurisdiction to make the parenting orders (also referred to as Commonwealth personal protection measures). I am also satisfied that it is in the best interests of both boys that I make the orders sought.
Interestingly, the facts to consider in relation to jurisdiction would be different if the 1996 Convention had entered into force between Australia and the United States. Then, by virtue of s.111CD(1)(b), this court could only exercise jurisdiction to make the kind of order now made if “the child’s protection requires taking the measure as a matter of urgency”[10] or jurisdiction had been transferred to this court by a “competent authority” in the United States[11]. However, that is not the case.
[10] Section 111CD(1)(b)(ii)
[11] Section 111CD(1)(b)(iv) or (v)
Conclusion
It is fortunate that the combined efforts of practitioners and judicial officers in Australia and the United States and experts in Australia have enabled the parties and the father to reach a principled resolution of this matter. Whether the resolution can be fully implemented, and the boys can returned to the United States without a further contested hearing, is now conditional upon whether the respondent mother will be permitted to accompany the boys back to the United States and remain there for as long as is necessary for the courts of the United States to determine where and with whom the boys should live and what access the boys should have with the parent with whom they do not live.
I certify that the preceding fifty nine (59) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 19 November 2013.
Associate:
Date: 22 November 2013.
Annexure “A”
Discussion of what constitutes a “Commonwealth personal protection measure” with particular reference to parenting orders under Part VII of the Family Law Act 1975.
1.Division 4 of Part XIIIAA was inserted into the Act in 2003 by the Family Law Amendment (Child Protection Convention) Act 2002. Division 4 commences with a definition section which includes:-
Commonwealth personal protection measure relating to a child means a measure (within the meaning of the Child Protection Convention) under this Act that is directed to the protection of the person of the child.
competent authority:
(a) competent authority of Australia means an entity that has responsibility or authority under the law in force in Australia, or part of Australia, to take measures or make decisions about:
(i) protecting the person of a child; or
(ii) appointing or deciding the powers of a guardian of a child’s property; and
(b) competent authority of a Convention country means an entity that has responsibility or authority under the law in force in the Convention country to take, or make decisions about, a foreign measure relating to a child; and
(c) competent authority of a non‑Convention country means an entity that has responsibility or authority under the law in force in the country to take measures or make decisions about:
(i) protecting the person of a child; or
(ii) appointing or deciding the powers of a guardian of a child’s property.
entityincludes the following:
(a) an individual;
(b) a corporation;
(c) an unincorporated body;
(d) a government authority or body;
(e) a court or tribunal.
foreign personal protection measure relating to a child means a measure (within the meaning of the Child Protection Convention) taken by a competent authority of a Convention country for protecting the person of the child.
Article 1 of the 1996 Convention recites the objects of the Convention to include determining the State whose authorities have jurisdiction to take measures directed to the protection of the person or the property of the child and to determine the law applicable to parental responsibility.
Article 2 provides that “[for] the purposes of this Convention, the term ‘parental responsibility’ includes parental authority, or any analogous relationship of determining the rights, powers and responsibilities of parents, guardians or other legal representatives in relation to the person or property of the child.”
Article 3 provides that “the measures referred to in Article 1 may deal in particular with –
a)the attribution, exercise, termination or restriction of parental responsibility, as well as its delegation;
b)rights of custody, including rights relating to the care of the person of the child and, in particular, the right to determine the child’s palace of residence, as well as rights of access including the right to take a child for a limited period of time to a place other than the child’s habitual residence.”
In this case the applicant and the requesting parent sought parenting orders about the children.
Parenting orders routinely made by our Court include orders dealing with the person or persons with whom a child is to live (s 64B(2)(a)), the time a child is to spend with another person or persons (s 64B(2)(b)), the allocation of parental responsibility (s 64B(2)(c)) and the form of consultation required between persons who share parental responsibility (s 64B(2)(d)), the communication that a child is to have with another person or persons (s 64B(2)(e)) and any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child (s 64B(2)(i)).
Section 61B of the Act provides that parental responsibility in relation to a child means all the duties, powers, responsibilities which, by law, parents have in relation to children.
It is clear, therefore, that a Commonwealth personal protection measure, as referred to in s 111CD(1) of the Act includes parenting order as defined by s 64B(1) and (2) of the Act.
“The goal for which we should strive in this jurisdiction, both at first instance and on appeal, should be 6 weeks from invitation to conclusion. It cannot be too strongly emphasised that this is intended to be a hot pursuit remedy and if the courts permit it to linger into anything else they aid the creation of unnecessary litigation issues.”
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