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Mediation in Hague Convention (child abduction) cases

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By Amanda Humphreys, Senior Associate, MST Lawyers

Te Mata & Butler [2016] FamCA 89 highlights the utility of mediation in proceedings conducted under the Hague Convention on the Civil Aspects of International Child Abduction (“the child abduction convention”).

This case commenced with an application initiated by the Australian Central Authority, at the request of the mother from New Zealand, seeking the return of two young children from Australia to New Zealand.  That application was dismissed, with the effect that the children would stay in Australia, the court being satisfied that the mother acquiesced to the children being retained in Australia by the father: SCA v Te Mata [2016] FamCA 85.

Upon the commencement of the child abduction convention proceedings, Justice Bennett of the Family Court of Australia appointed an independent children’s lawyer (ICL) with expertise in child abduction convention cases.   Amongst other aspects of her role, the ICL promptly arranged mediation with Victoria Legal Aid’s Family Dispute Resolution Service (FDRS).  FDRS utilised a model of mediation developed specifically for child abduction convention cases, conducted by mediators skilled in the mediation of international parenting disputes, and involving the ICL.   Following this model, the mediation was conducted over three sessions at no charge to the parties.  Whilst the parents were unable to resolve the child abduction case itself, they considered, discussed and prepared for possible outcomes of the return application.  This aspect of the mediation was successful and the ICL prepared a minute of order which it was agreed between the parents should be made if the return application either failed or succeeded.  The minutes were tendered to the court. 

When the child abduction convention case was heard and the Central Authority’s return application was dismissed, Justice Bennett stood the matter over for a few days to enable the mother to obtain legal advice.  When the matter returned, the parties confirmed they agreed to the making of orders in terms of the minute prepared at mediation.   Her Honour granted leave to the father to make an oral application for parenting orders to be made as agreed between the parties; dispensed with the requirement for payment of any fees and for the filing of documents; and made parenting orders by consent in terms of the minute agreed upon by the parties, including an order requiring the parties to obtain complimentary “mirror” orders in New Zealand.  The ICL provided each parent with documents which would facilitate registration of Australian parenting orders in New Zealand.   

The Australian Court was also assisted in this case by direct judicial communication between Hague Convention liaison judges, Justice Bennett in Australia and Justice Ryan in New Zealand. 

This case demonstrates the benefits of the early appointment of an experienced ICL in child abduction cases; mediation with skilled mediators utilising a specialised model of mediation; direct judicial communication; and judicial initiative and pragmatism.    These benefits are particularly evident when considering the timeframe in which the matter was resolved – the State Central Authority’s return application was filed on 16 December 2015; mediation sessions were conducted in late January and early February 2016; the return application was heard and dismissed on 9 February 2016; and final parenting orders were made on 12 February 2016. 

MST Lawyers’ Family Law team has significant expertise in child abduction convention cases, including litigation and cross-border mediation.  Please do not hesitate to contact us if you require assistance with an international family law matter by emailing us at family@mst.com.au or by telephone + 61 3 8540 0200.