Te Mata and Butler

[2016] FamCA 89

FAMILY COURT OF AUSTRALIA

TE MATA & BUTLER [2016] FamCA 89

FAMILY LAW – Final consent orders following failed Hague return application – dispensation with compliance of all Rules – Hague mediation – best interests – importance of mirror order

APPLICANT: Mr Te Mata

RESPONDENT: Ms Butler

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 1116 of 2016

DATE DELIVERED: 12 February 2016

PLACE DELIVERED: Melbourne

PLACE HEARD:

JUDGMENT OF: Bennett J

HEARING DATE: 12 February 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT:

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

Orders

IT IS ORDERED THAT:

1. I grant leave to the Father to make oral application for parenting orders to be made as agreed between the parents and in relation to the children B born … 2012 and C born … 2013 (“the children”) and following determination of a return application under Regulation 14 of the Family Law (Child Abduction Convention) Regulations 1986 (“the regulations”).

2. I dispense with payment of any fees and for the filing of documents.

BY CONSENT IT IS ORDERED THAT:

1. The Children B born …2012 and C born …2013 ("the children”) live with the Father.

2. The Mother communicate with the children by skype/telephone contact 3 times per week, on Wednesday and Sunday at 7.30pm Melbourne time and 6.30pm Friday Melbourne time, with the Mother to place the call.

3. Subject to paragraphs 7 and 10 below, the father must take the children to City E, NZ for not less than one week commencing on or about 21 May 2016 to spend time with the Mother at times and places as agreed.

4. The Father is to pay his return airfare and the return airfare of one child and the Mother is to pay the return airfare of one child.  

5. In the event the maternal grandfather’s health deteriorates and the Mother requests that the children be brought to NZ to see him, and confirms with the Father that the maternal grandfather has indicated he will meet and spend time with the children, the father will facilitate a visit to NZ by the children of not less than one week before 21 May 2016.

6. The Father is to pay his return airfare and the return airfare of one child and the Mother is to pay the return airfare of one child.  

7. With reference to paragraph 7, during this period the children spend time and communicate with the Mother at times and places as agreed between the parents.

8. In the event the children travel to NZ in accordance with paragraph 7  the Father will not be required to bring the children to NZ for one week commencing on or about 21 May 2016 in accordance with paragraph 5 and face to face contact will take place at a time otherwise agreed between the parents.

9. The Mother and Father do all acts and things necessary to obtain complimentary orders on these terms by a court of competent jurisdiction in New Zealand, which are enforceable prior to the children travelling from Australia to New Zealand and the Father be and is hereby responsible for payment of the filing fee (estimated at $220) in New Zealand.

10. Liberty to apply on short notice to me on the event of alleged non-compliance with this Order.

IT IS FURTHER ORDERED THAT:

1. The Father’s oral application made this day be and is hereby otherwise dismissed.

2. All extant applications be otherwise dismissed and this matter be removed from the pending cases list.

3. My reasons for decision this day be transcribed and when settled a copy be placed on the Court file and made available to the parties.

4. Pursuant to s 65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Attachment and these particulars are included in these orders.

IT IS DIRECTED THAT:

1. The proposed minute of orders be marked Exhibit “A” and remain on the Court file.

NOTATION:

A.The parents agree to attend further mediation through ISS or Relationships Australia or similar service (If VLA FDRS is not available) to try and agree upon parenting arrangements.

B.The parents have not agreed on specific times the children will spend with the mother when they travel to NZ.  It is agreed contact periods will occur over 8- 9 days as it is envisaged the trip will start on a Saturday and end on the following Saturday or Sunday. The parents have agreed that a gradual and supported approach for the children is required, including that both parents be present in the initial visits. 

IT IS NOTED that publication of this judgment by this Court under the pseudonym Te Mata & Butler 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 1116 of 2016

Mr Te Mata

Applicant

And

Ms Butler

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Ex Tempore

1. This matter comes before me on an application of the mother and the father for orders to be made in relation to the children, B, born in 2012, and C, born in 2013 (“the boys”).  I have pronounced final orders in this matter and indicated to the parties that I would deliver some reasons subsequently.  These are those reasons. 

2. The application is made orally and following the determination by me on 9 February 2016 of an application made by the State Central Authority for the return of the children to New Zealand pursuant to the Family Law (Child Abduction Convention) Regulations 1986. That application was dismissed with the effect that the children would remain in Australia. The proceedings number was MLC 11779 of 2015 and I delivered my reasons on the same day that the matter was heard.[1] 

   [1] [2016] FamCA 85.

3. In the Hague Convention proceedings, Ms Smith of Victoria Legal Aid was appointed Independent Children's Lawyer.  It is a role that she has had in very many Hague Convention applications in this registry.  In her role as Independent Children's Lawyer, Ms Smith arranged a mediation through Victoria Legal Aid Family Dispute Resolution Service on a special Hague model pursuant to which two mediators trained in Hague return matters convene the mediation at short notice and provide the parents with up to three sessions. 

4. The purpose of the mediation is not necessarily to bring about a resolution of the forum argument.  The most important function of the mediation is to have each parent consider and prepare for possible outcomes in the Hague return proceedings.  That is, for each parent to consider what orders they would seek or what arrangements they would want to implement in the event that their primary position is successful but perhaps even more importantly, in the event that they are not successful.  This is what occurred in this case. 

5. The timeline in this matter was broadly as follows: 

   a)The application of the State Central Authority was filed on 16 February 2015 and ex parte orders were made on that day and an Independent Children's Lawyer was appointed. 

   b)On 18 December 2015, Ms Smith filed her address for service as Independent Children's Lawyer and the matter returned to court on 22 December 2015. 

   c)On 22 December 2015, I appointed 9 February 2016 as the date for final hearing and required that the father file and serve his response and any evidence upon which he relied by 11 January 2016. 

   d)The State Central Authority had until 25 January 2016 to file any further material upon which it relied. 

   e)There were three sessions of mediation, all of which were conducted by Mr J and Ms K.  The mediation is free of charge to the parties and the Independent Children's Lawyer was a participant in the mediation. 

   i.The first session was on 27 January 2015 between 1.30 pm and 5 pm (Melbourne time).  The mother attended by telephone link. 

   ii.The next session of mediation was on 1 February 2015 from 1.30 pm until 5 pm, when the mother attended by Skype. 

   iii.The third and final session of mediation was from 3 pm to 6.30 pm (Melbourne time) on 3 February 2016 and the mother also attended by Skype.  Neither parent was represented at the mediation and the Independent Children's Lawyer appeared in her own right. 

6. When the hearing commenced on 9 February 2015, the State Central Authority appeared as applicant.  The mother was in New Zealand.  Unfortunately, the court’s audio visual system, Cisco Jabber, was not functioning adequately.  It appears that the fault may lie our end rather than anything to do with the mother’s technology. 

7. The respondent father appeared in person and Ms Downer appeared on behalf of the Independent Children's Lawyer.  In the course of those proceedings, there was tendered a minute of proposed orders which would be sought by consent by the mother and father.  One set of orders was to be sought in the event that the application for the return of the children to New Zealand was granted and the other set was to be sought in the event that the return of the children to New Zealand was denied. 

8. Upon dismissing the Hague return proceeding, I asked if the parents were ready to proceed with those orders and there was some equivocation on the part of the mother who felt that she did not adequately understand her options. 

9. I therefore stood the matter over and gave the mother a few days in which to obtain any legal advice she wanted in New Zealand.  I said I would still make the orders on the basis of no fees and no documents if everyone agreed.  That is what has occurred. 

10. The resolution of this parenting application is by consent, I am familiar with the family dynamics. I am satisfied that the orders sought are in the best interests of the children. 

11. The orders I made today require registration or complementary orders in New Zealand; I am informed by the Independent Children's Lawyer that she has sent each parent documents which will facilitate the registration of orders in these terms in New Zealand.  The father has agreed to pay the filing fee for that process which I understand is approximately $220. 

12. I have explained today the importance of the parties having orders which are enforceable in New Zealand in place prior to the boys leaving Australia.  That is because the orders that I have made herein operate and are enforceable in Australia but they do not carry the force of law in New Zealand.  In order for the father and the children to be assured that there will be no difficulty in them returning to Australia from New Zealand at the conclusion of any period of access or time spent, there should be orders in New Zealand that compel that to occur. 

13. I am, as always, grateful for the provision of information from the Hague Network Judge in New Zealand, Judge Laurence Ryan.  I will send him a copy of the orders in the Hague matter, these orders and these reasons as a matter of courtesy. 

14. It is hoped that the ability to have mediations in Hague matters between Australia and New Zealand continues for the benefit of the children concerned, including mediations being undertaken in New Zealand. 

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 12 February 2016.

Legal Associate: 

Date:  19 February 2016