Director-General, Department of Community Services & Frampton (No. 2) [2008]

FAMILY LAW - APPEAL – HAGUE CONVENTION – Where the Full Court had allowed an appeal against, and set aside, declarations and orders made by the trial Judge – The effect of the Full Court orders was that the child should return to the United Kingdom with her mother pursuant to the Family Law (Child Abduction Convention) Regulations 1986 – The Full Court had made directions for submissions to be filed by the parties (in either agreed or separate form) in relation to the machinery orders required to provide for the return of the mother and child to the United Kingdom – Separate draft orders and supporting submissions were subsequently received from the parties – Where the mother is now in an advanced state of pregnancy and seeks to remain in Australia for the birth of her child and for the following two months to permit immunisation of the infant – Proposed machinery orders set out by the Full Court in the reasons for judgment – Order made that each party file and serve on the other side brief submissions indicating their agreement or otherwise with those proposed orders.

FAMILY COURT OF AUSTRALIA

REPRESENTATION

ORDERS

(1) That by 10am on Monday, 5 May 2008 each party file with the Appeal Registrar and serve on the other party brief submissions indicating their agreement to the form of the orders proposed in paragraph 24 of the reasons for judgment delivered this day or alternatively proposing any changes to the drafting of those orders which they consider should be made.

IT IS NOTED that publication of this judgment under the pseudonym Director-General, Department of Community Services and Frampton is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Appeal Number: EA 13 of 2008
File Number: SYC 1445 of 2007

Appellant

And

Respondent

REASONS FOR JUDGMENT

1. On 3 April 2008 this Full Court delivered reasons for judgment and made orders allowing an appeal against orders made by Le Poer Trench J on 14 January 2008. Although it would not be apparent on the face of our orders of 3 April 2008, their effect was that a child, L, (born February 2002) should be returned to Scotland, in the company of her mother, pursuant to the regulations which give effect to Australia’s obligations under the Hague Convention on the Civil Aspects of Child Abduction (the Family Law (Child Abduction Convention) Regulations 1986 (“the Regulations”)).
2. These reasons for judgment relate to necessary machinery orders which must now be made to provide for the return of the child and her mother to Scotland. In order to provide a full appreciation of the background to this case, these reasons should be read in conjunction with our reasons in relation to our orders of 3 April 2008.
3. However the essential background to the matter now before us is that on 11 September 2007 another Full Court (Kay, Warnick and Boland JJ) allowed an appeal against orders which had been made by Le Poer Trench J and made an order requiring the return of a child, L, (born February 2002) to Scotland in the company of her mother pursuant to the Regulations.
4. The Full Court orders of 11 September 2007 then provided a program or timetable for arrangements to be made between the Central Authority (under the Regulations), the child’s mother and the child’s father (who is in Scotland), which included a requirement that within 21 days of the father being notified that the mother had a visa to enter the UK, he was to purchase airline tickets for the mother and child and deposit a sum of $5,000 for their support in Scotland.
5. In the event an issue arose as to whether the father had complied with his obligations to provide the tickets within the required time. By orders made on 14 January 2008, Le Poer Trench J declared that the father had not complied, and that as a consequence the order of the Full Court of 11 September 2007 requiring the return of the child to Scotland had lapsed, and the application (by the Central Authority) for her return was discharged.
6. On 3 April 2008 this Full Court allowed an appeal by the Central Authority against, and therefore set aside, his Honour’s orders of 14 January 2008. In place of his Honour’s orders, we made an order declaring that the father had complied with the relevant order of the Full Court orders of 11 September 2007.
7. At the conclusion of our reasons for judgment of 3 April 2008, we recognised that further orders of a machinery nature would be required to give effect to the Full Court order of 11 September 2007 for the return of the child to Scotland. We therefore made an order requiring the parties to file an agreed draft of such further orders, or in default of agreement, separate draft orders with supporting submissions, within 14 days of the date of our orders (that is, by 18 April 2008: see discussion of time requirements at paragraphs 29 – 34 of Le Poer Trench J’s reasons for judgment of 14 January 2008). The precise terms of our order was as follows:
   1. That within 14 days of the date of these orders the State Central Authority and the mother either file an agreed draft of the further orders of a machinery nature which are necessary to give effect to Order 3 of the orders of the Full Court of 11 September 2007, or in default of agreement each party shall file and serve on the other party separate drafts of such further orders together with brief written submissions in support of that party’s separate draft.
8. On 17 April 2008 the Central Authority endeavoured to file an application seeking an order in the following terms:

That the hearing to put in place the mechanism to give effect to the return order be expedited to the earliest date convenient to the court.

1. That application was clearly misconceived given the direction in Order 3 of our orders of 3 April 2008 for the filing of an agreed draft of orders, or in default of agreement, separate drafts and supporting written submissions.
2. But, however that may be, we have been informed by the Appeal Registrar that the Central Authority still seeks for purposes of the determination, which we have to make, to rely on that application together with an affidavit (affirmed on 17 April 2008) and a further affidavit (affirmed on 18 April 2008) from the responsible officer with the Central Authority, as well as submissions dated 16 April 2008 from counsel for the Central Authority. Attached to counsel’s submissions are draft orders (somewhat curiously dated 10 January 2008).
3. On 24 April 2008 submissions were filed on behalf of the mother by her solicitors. Those submissions contained the orders now sought by the mother together with an application to extend time for the filing of the submissions, which we are prepared to grant.

ISSUES NOW ARISING

1. In light of the material which we have from both parties, it is clear that they have been unable to agree the arrangements for the return of the mother and the child, and that the matter has now become further complicated by the fact that the mother is now in a relatively advanced state of pregnancy (thirty-four weeks according to her solicitor’s submissions).
2. We attach to these reasons, as Attachment 1, the submissions of counsel for the Central Authority and the Authority’s proposed orders, and as Attachment 2 the submissions of the mother’s solicitors which contain her proposed orders. We propose to determine this matter on the basis of the attached material as foreshadowed in our reasons and orders of 3 April 2008.
3. It is clear from the material from the Central Authority that its officers are aware of the mother’s pregnancy. But it would seem both from paragraph 8 of the submissions of counsel for the Central Authority and its draft Order 5, that the Authority would want the mother to travel to the United Kingdom before the anticipated birth of her new child and to avail of British medical services for purposes of the birth.
4. For her part, the mother seeks to remain in Australia for the birth of the expected child and then for the following two months to permit immunisation of the child. The arguments put in support of the mother’s position in her solicitor’s written submissions are as follows:

6.2. The Mother would be returning on the basis of a six-month visitor’s visa. Under the standard terms of this visa, it is clear that a Visitor’s Visa has no entitlement, at all, to access public health services, subject to emergency. The Mother has no means to pay for private health services in the UK. After having made inquiries as to the cost of accessing such services, the Mother was provided with an estimate of approximately $7,000 (AUD – equiv $3,000 Pounds Sterling) for a standard three (3) night hospital stay. This did not take account additional nights or services if complications were to arise;

6.3. It is imperative that Mr [B], the Mother’s fiancé and father of her unborn child, be present at the infant’s birth;

6.4 Mr [B] cannot return to the United Kingdom. He must continue to work in Australia to support the Mother and the children whilst she is living in the United Kingdom, which will be for no more than six (6) months presuming a visa will be granted. There is no Order guaranteeing that [L’s] father will provide the Mother and her children with any ongoing financial support once she arrives in Scotland;

6.5 The Mother’s infant would be entitled to a British Passport. Mr [B] is a British citizen. The child would automatically be eligible for a British Passport;

6.6 It is submitted that a return prior to the baby’s birth would significantly compromise the Mother’s capacity to care for [L] and the Mother’s newborn child, noting the aforesaid issues.

1. The arrangements which are then sought by mother are as follows:

7.1 That the Mother be permitted to give birth to her unborn child in Australia;

7.2 That following the birth of the said infant:

(a) A date for departure to the United Kingdom be fixed by agreement (in writing) between the Mother and the State Central Authority, and not before the infant has receive his/ her two-month immunisations;

(b) The Mother forthwith apply for a six (6) month visitor’s visa to enable her to return to the United Kingdom with [L] and the infant (in accordance with the terms of Order 5 of the Orders of the Full Court dated 11 September 2007);

7.3 That the Mother instruct her Solicitor to notify the State Central Authority as to the outcome of her visa application within 48 hours of it being known (including the provision to the State Central Authority of any relevant documentation);

7.4 That within twenty-four (24) hours of receiving notice from the Mother as to the outcome of her visa application:

(a) The State Central Authority forthwith notify the Father as to the outcome (including the provisions of any relevant documentation received from the Mother); and

(b) The State Central Authority copy the Solicitors for the Mother into any correspondence sent to the father for the purpose of this notification.

7.5 That within three (3) days following the date to which point 4 relates, the Father:

(a) Book and pay for airline tickets for the Mother, [L] and the infant to travel to the United Kingdom; and

(b) Deposit into a bank account nominated by the Mother, the sum of $5,000.00 (AUD), so that it is received into the said bank account within 5 days of notification.

1. None of the factual assertions in the submissions from the mother’s solicitor are supported by evidence in proper form. However we do not consider that further time and money (much of which is public) should be spent by requiring some supporting evidence to be obtained, filed and evaluated by the court. It is clear that the mother is in a fairly advanced state of pregnancy, and that there would be obvious difficulties for her, the subject child, and the child yet to be born, if she was required to travel to the United Kingdom prior to the birth of the expected child. It is obvious that if she did travel in advance of the birth, she would not be able to return to Australia in time for the birth. Even if she was to be covered totally by the British public health service for all her medical expenses, there are likely to be other expenses and practical difficulties for her if her expected child had to be born in Britain.
2. We therefore determine that the mother should be permitted to remain in Australia until the child with whom she is pregnant, is born. There are too many practical uncertainties and potential difficulties for her and for the subject child, L, in any other course.
3. In reaching this conclusion, we have particular regard to what was said by the previous Full Court in its reasons for judgment of 11 September 2007, at paragraphs 26 to 34, concerning the need for the mother to accompany L back to Scotland and to remain there until her future was there determined. We also agree that it is important that the new-born child receive his/ her two-month immunisation before travelling.
4. We consider, however, that the timeframe provided in the mother’s proposed order numbered 7.2 should be more specific and that the date for departure should be no later than 3 months from the date of the birth of the expected child. The mother should be required to apply as soon as possible after the birth for a 6 months visitor’s visa to allow her to enter the United Kingdom on a date no later than 3 months from the date of the birth.
5. In the draft orders submitted by the Central Authority, it is proposed that the father should now only deposit the sum of AU$4,000 to take account of the loss incurred as a result of the aborted flights on 15 January 2008. We consider this reduction reasonable given that it was the mother who ultimately unsuccessfully claimed that the father had failed in his obligations under the then existing orders.
6. The Central Authority also now seeks the insertion of certain additional orders being Orders 6 to 16 (see Attachment 1) some of which (being Orders 6 to 8) it “submits are routine and necessary machinery provisions to enable the child’s departure...”. Orders 6 to 8 proposed by the Authority relate to an order of 6 March 2007 made by a Judicial Registrar and are in similar effect to Orders 9 and 10 sought by the mother. Given this common ground we will make these orders.
7. Orders 9 to 15 proposed by the Central Authority appear to provide for the child, L, to be taken to Scotland in the company of someone other than the mother in the event that the mother fails to board a flight booked pursuant to our orders. If our understanding of these suggested orders is correct, they would run directly counter to what was intended by the original Full Court (in the paragraphs from its reasons previously mentioned) with regard to the mother’s accompanying the child, and therefore would not be countenanced by us.
8. The orders we propose to make, subject to giving the parties the opportunity to comment for reasons which we will shortly explain are as follows:
   1. That Order 3 of the orders made by the Full Court of the Family Court of Australia on 11 September 2007 be varied to provide that the State Central Authority and/ or the Mother and/ or the Father of the child, L, make such arrangements as are necessary for L to return to Scotland in the company of her Mother on a date agreed in writing between the State Central Authority and the Mother, not before the Mother’s unborn child (hereafter referred to as “the infant”) has reached the age of two (2) months but before the infant has reached the age of three (3) months.
   2. That Orders 5, 6 and 7 of the orders made by the Full Court on 11 September 2007 be varied to provide as follows:

(i) That as soon as reasonably practicable after the birth of the infant, the Mother shall forthwith sign all documents and do all things necessary to apply to the appropriate United Kingdom authorities for a visa that will enable her to accompany the child L to the United Kingdom (departing Australia on a date no later than three (3) calendar months after the birth of the infant) and remain in the United Kingdom for a period of not less than six (6) months to enable the resolution of proceedings in the United Kingdom concerning parenting Orders appropriate for L.

(ii) That simultaneously with Order 2(i) above, the Mother forthwith sign all documents and do all things necessary to apply to the appropriate United Kingdom authorities for a passport to enable the infant to accompany the Mother and the child L to the United Kingdom.

(iii) That the Mother notify the State Central Authority as to the outcome of her visa application within two (2) working days of it being known, notification to include the provision to the State Central Authority of any relevant documentation and the like.

(iv) That within two (2) working days of receiving notice from the Mother of the outcome of her visa application, the State Central Authority:

(a) shall forthwith notify the Father by emailed or faxed letter as to the outcome, including the provision of any relevant documentation received from the Mother; and

(b) copy the Solicitors for the Mother into all correspondence sent to the Father for the purpose of this notification.

(v) That within three (3) working days of the date shown on the emailed or faxed letter from the State Central Authority to the father advising him that the mother has obtained the requisite visa, the Father shall:

(a) book and pay for the airline tickets for L, the Mother and the infant to travel to the United Kingdom; and

(b) deposit into a bank account nominated by the Mother, the sum of AU$5,000 (less the amount of $1,000 to reflect the approximate loss the father incurred as a result of the aborted flights of 15 January 2008) so that it is received into the said bank account within five (5) business days of the notification to the Father occurring.

1. That for the avoidance of doubt, paragraph 2.1 of the Orders dated 6 March 2007 be varied so as to allow the Mother and L to leave the Commonwealth of Australia for the purposes of giving effect to the Orders herein, and that the Australian Federal Police do give effect to the said variation.
2. That following the departure of L and the Mother from the Commonwealth of Australia in accordance with these Orders, the Australian Federal Police do all acts and things necessary to remove the names of the following person from the PASS Alert System in operation at all Australian International Arrival and Departure points:

(a) [the mother]; and

(b) [the child, L].

1. The return Order shall lapse and the application for the return of L shall be discharged in the event of any of the following circumstances arising:

(a) in the event that the Mother’s visa application is refused; or

(b) in the event that the Father fails to provide the return airline tickets in accordance with Order 2(v)(a); or

(c) in the event that the Father fails to pay the sum of money referred to at Order 2(v)(b) by way of support for the Mother and L, in accordance with the aforesaid Order.

1. Because our proposed orders are not precisely the same as either party has proposed, we propose to give each party until 10am on Monday, 5 May 2008 to make any further submission as to the drafting of the proposed orders.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court

Associate:

Date: 29 April 2008