STATE CENTRAL AUTHORITY & TUATI

[2010] FamCA 1209

FAMILY COURT OF AUSTRALIA

STATE CENTRAL AUTHORITY & TUATI [2010] FamCA 1209

FAMILY LAW – CHILD ABDUCTION – Hague Convention – Alleged wrongful removal under the 1980 Convention – ex parte orders – appointment of an independent children’s lawyer pending submissions from the parties – orders for security of child pending service and early return date

APPLICANT: State Central Authority

RESPONDENT: Ms Tuati

FILE NUMBER: MLC 11917 of 2010

DATE DELIVERED: 23 December 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 23 December 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT:

Ms Carey

State Central Authority
Department of Human Services

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

Orders

IT IS ORDERED:

1. That leave is granted to the applicant State Central Authority to proceed ex-parte with orders in the terms of paragraphs (b), (c) and (d) of the application filed 22 December 2010.

2. That this matter be adjourned for the further hearing of the said application before me at 9.30 am on 7 January 2011 (“the adjourned date”).

3. That the applicant State Central Authority effect service of the application and this Order upon the respondent father as soon as practicable.

4. That in the event that the respondent father has been served with the application by the adjourned date:-

   (a)he attend Court personally on 7 January 2011 and remain at Court pending further order of the Court;

   (b)the father deliver the child R born … March 2005 to the Child Care Room on the 5^th Floor of this Registry of the Court by not later than 9.15 am on 7 January 2011, where the child shall remain pending further order of the Court.

5. IT IS DIRECTED that my Associate or Court Officer reserve a place in the Child Care Room for R born … March 2005 on the adjourned date from 9.15 am onwards.

6. That until further order or return of the said child to New Zealand, the Secretary to the Department of Human Services of the State of Victoria or her delegate make such arrangements as are necessary for the purposes of placing the said child with an appropriate person, institution or body and upon such terms and conditions as she shall determine to secure the welfare of the said child pending final determination of this proceeding.

7. That such Officers of the Department of Human Services, Victoria, as the Secretary to such department may from time to time direct, be authorised and permitted to visit and enter the place of residence of the respondent and to have such access to the said child as they may reasonably require for the purposes of investigating and determining the welfare of the said child and if considered appropriate to take the said child into care.

8. That until further order, the respondent father MR TUATI born … 1974 by his servants or agents be restrained by injunction from causing or permitting or suffering the said 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

   (c)to reside at any other than their present residential address, C Street, N, Victoria or any other residence at which the applicant has agreed that the said child may reside.

9. That the prohibition against removal of R born … March 2005 from Australia, out of Victoria and from his current residence applies mutatis mutandis to the requesting parent, MS TUATI, of …, Wellington, New Zealand.

10. That the respondent, his servants or agents forthwith deliver up to the Registrar of the Family Court of Australia at Melbourne for safe custody any and all passports held in the name of the said child or upon which the said child appears and be and is hereby restrained from applying for any further or other passports for the said child pending further orders of this Court.

11. That 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 Secretary of the Commonwealth Department of Foreign Affairs and Trade.

12. That pursuant to section 68L(2) of the Family Law Act 1975 the interests of the child R born … March 2005 be independently represented by a lawyer AND IT IS REQUESTED that Victoria Legal Aid arrange such representation and the independent children’s lawyer be appointed in sufficient time to be able to make recommendations about what interim parenting orders would be in the best interest of the child by the next return date.

    AND IT IS NOTED that the parties will be accorded an opportunity to make submissions about the appropriateness of an independent children’s lawyer being appointed once all parties are before the Court and have had an opportunity to obtain legal representation.

13. That forthwith upon appointment by the said Victoria Legal Aid or otherwise the independent children’s lawyer file a Notice of Address for Service.

14. That unless the applicant has already done so, the applicant procure by subpoena a copy of the entry documents completed for the said child on his entry into Australia on or about 22 September 2010.

15. That by the adjourned date the applicant procure material evidencing the outcome of the criminal charges faced by the requesting parent and referred to at paragraph 3 of her affidavit sworn 10 November 2010.

16. That within 48 hours of notification of such appointment the solicitors for the respective parties provide to the independent children’s lawyer copies of all relevant documents relied upon.

17. IT IS REQUESTED that on the adjourned date the applicant State Central Authority be in a position to inform the Court of what arrangements can be made to support the prompt return of the respondent and the child to New Zealand in the event that I find that R born … March 2005 must be returned to New Zealand pursuant to Regulation 16(1) of the Regulations but that I do not accede to the requesting parent’s proposal that she travel to Australia to collect the child and return with the child to New Zealand.

18. That I reserve to the requesting parent, Ms Tuati, liberty to apply to vary or set aside or discharge any injunctions provided in this Order which affect her or as she may be advised.

IT IS NOTED that publication of this judgment under the pseudonym State Central Authority & Tuati is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 11917 of 2010

STATE CENTRAL AUTHORITY

Applicant

And

MR TUATI

Respondent

REASONS FOR JUDGMENT

1. These proceedings are brought under the Family Law (Child Abduction Convention) Regulations, and it is alleged that the father has wrongfully retained R, born in March 2005, in Australia since approximately 9 October 2010.

2. The respondent father and the requesting parent, who is the mother, are both nationals of the Cook Islands.  R is the youngest of the parties’ six children.  The oldest child resides in Auckland with her maternal grandparents.  The four other children, born in September 1996, September 1998, November 1999, and July 2001, reside with the father in Melbourne and have done so since approximately 2007.

3. It is alleged that on or about 22 September 2010 the mother consented to the removal of R from New Zealand with a mutual friend, Ms H, for the purpose of R attending a hair-cutting ceremony of his older brother.  It is alleged that he was to be returned to New Zealand in early October for the commencement of the next school term on 11 October 2010.  However, R was not returned and, it is alleged that, since then, the father has refused to return him. 

4. The mother’s application, including her affidavit in support of the application, were completed or sworn, as the case may be, on 10 November 2010.  An affidavit concerning the requesting parent’s rights of custody was completed on 22 October 2010.  I am not aware of why there has been a delay in the filing of the proceedings which were not brought to this Court until yesterday, 22 December 2010.  It is appropriate that the matter proceed as expeditiously as possible. 

5. Normally a party against whom orders are made would be given notice of the proceedings and accorded procedural fairness.  In exceptional circumstances such as I am prepared to accept pertain to this case, the Court can make orders without the respondent being aware of the proceedings in the first place.  That is to be accompanied by a requirement for service as soon as possible, an early return date and liberty to the respondent in the meantime to seek that the temporary orders made today be dissolved. 

6. These proceedings concern a young child.  They are proceedings brought pursuant to legislation reflecting Australia’s obligations under the 1980 Hague Convention. Australia has an obligation to all other contracting states under the 1980 Convention to locate and secure the presence of allegedly abducted children at the earliest practicable date.

7. The ex parte orders should not prejudice the respondent from putting his case before the Court or the organisation of the matter for a trial to be conducted as soon as possible.

8. It is appropriate for me to make the urgent orders sought by the applicant and I will do so.

9. I have also made a request for the appointment of an independent children’s lawyer.  That request should be made only in exceptional circumstances.  I have not asked for submissions in relation to that for the time being.  The respondent father is not before the Court, and that is surely an issue upon which any respondent is entitled to be heard.  International experience tells me that the main difficulty with the representation of children in proceedings under the 1980 convention is the timeliness or the lack of it with which their appointment is sought.  I wish to avoid a situation where it is apparent that R should be represented – R’s interests should be represented in these proceedings but that it would create a delay in the final disposition of them.  I specifically reserve to the parties, being the applicant and the respondent father, the entitlement to make submissions in due course in the event that they consider it inappropriate for R to be represented, having regard to the provisions of the Family Law Act 1975. 

10. It is necessary for the father to bring R to Court on the next return date, providing, of course, that he has been served with the proceedings. 

11. I anticipate that the father will need legal representation very soon in order to prepare his case for as quick a trial as the Court can reasonably accommodate. However if he chooses not to retain a lawyer or is not eligible for assistance from Victoria Legal Aid, he will be expected to represent himself.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 23 December 2010.

Associate: 

Date:  4 January 2011