Attorney-General's Department and Economou (No 2)

[2012] FamCA 818

FAMILY COURT OF AUSTRALIA

ATTORNEY-GENERAL'S DEPARTMENT & ECONOMOU (NO. 2) [2012] FamCA 818

FAMILY LAW – HAGUE - Where the Requesting Mother has travelled to Australia - Where the Requesting Mother has deposed that she intends to remain in Australia and to seek parenting Orders regarding the subject children in an Australian Court - Where the Applicant is unable to obtain instructions from the Cypriot Central Authority

Family Law (Child Abduction Convention) Regulations 1986 (Cth)
Family Law Act 1975 (Cth)

Department of Community Services v Crowe (1996) FLC 92-717
Director-General, Department of Child Safety v S (2005) FLC 93-249

APPLICANT: Attorney-General's Department

RESPONDENT: Mr Economou

FILE NUMBER: BRC 4513 of 2012

DATE DELIVERED: 17 August 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 17 August 2012

REPRESENTATION

SOLICITOR FOR THE RESPONDENT: Australian Government Solicitor

Orders

1. The Form 2 Application filed by the Applicant on 21 May 2012 be dismissed.

2. Leave be granted for the Mother to make an oral application for parenting Orders within the meaning of s 64B of the Family Law Act 1975 (Cth) (“the Act”) with respect to the children, namely O, born … August 2002, B, born … January 2004, and C, born … January 2008, pending the filing by either party of an Initiating Application in a Court exercising jurisdiction under the Act in accordance with the rules of such Court.

Orders by Consent

1. The injunctions issued, and the requests of the Australian Federal Police made, by the Orders of this Court of 29 May 2012 shall remain in full force and effect pending the hearing by a Court exercising jurisdiction under the Act of the Initiating Application referred to in paragraph 2.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Attorney-General’s Department & Economou 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 BRISBANE

FILE NUMBER: BRC 4513 of 2012

Attorney-General's Department

Applicant

And

Mr Economou

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This is an application filed pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”) in respect of three children, namely O, born in August 2002, B, born in January 2004, and C, born in January 2008, being, as framed, an application for a return Order for the children to be returned to Cyprus on the assertion that the Father, Mr Economou (“the father”), wrongfully removed the children from Cyprus on or about 6 March 2012.

2. The requesting Applicant within the meaning of the Regulations is the Mother, Ms Economou, and she appears before me today, having come to Australia. The Mother has recently filed an affidavit on 14 August 2012 in which she confirms, apart from being the mother of the children, that the children were habitually residing in Cyprus at the time of their removal by the Father, and asserts that the removal was wrongful on that basis, but, relevantly, in paragraph 2(c) of that affidavit, sets out that she wishes to seek Orders from a Court in Australia in relation to her time and communication with the children and, further, in subparagraph (d), confirms that she has returned to Australia and intends to remain here to pursue her legal rights as a mother.

3. The Mother sought leave to intervene in the current proceedings, “…to seek final orders that the children live with me in Australia and spend time with and communicate with the father on a regular basis.” I have explained to the Mother this morning that it is not part of the purpose of the current application for this Court to determine parenting Orders pursuant to the Family Law Act 1975 (Cth) in the normal sense. I have explained to her the purpose of the Hague Convention proceedings and that she ought file an application in the usual way in terms of an Initiating Application in either the Federal Magistrates Court or this Court seeking parenting Orders.

4. The factual background of the matter is somewhat complex in that the Mother was born in New Zealand and the Father was born in Cyprus, the parties commenced their relationship in South East Europe in May 2001, married in Australia in 2002, and were divorced in the Federal Magistrates Court of Australia in November 2010. There is an issue between the parties as to when they actually finally separated, the Mother asserting that they separated in March 2011, while the Father asserts that they separated on 5 December 2008. In any event, as noted, an Order for divorce was made in Australia having effect from 27 November 2010.

5. It is not in issue that until September 2010, the parties and their children were habitually resident in Australia. There is an issue between them thereafter as to the terms upon which the children were relocated to Cyprus. In summary, on the Father’s case, it was always intended that the move to Cyprus was an opportunity for the children to immerse themselves in their Cypriot culture, and was to be a temporary visit, and that their place of habitual residence always remained Australia. It is the Mother’s case that the question of how long the children would be in Cyprus was open to question; on one view, she says the Father had indicated an intention possibly for it to be a permanent move.

6. In the event, it is unnecessary for me to determine the usual elements required on an application such as this. First, because the present Applicant does not press the application, partly because the Applicant has been unable to obtain the response of the relevant Central Authority in Cyprus, given the evidence of the Mother referred to, in terms of her now being in Australia and intending to pursue her rights in Australia. Second, Mr Foley, who appears for the Applicant, submits that the Applicant could not oppose an Order for dismissal of the application in the face of the Mother’s evidence.

7. Plainly enough, the Applicant bears the onus of establishing each of the five requirements set out in reg 16(1A) of the Regulations. Even assuming that the Applicant could establish the requirement of habitual residence, which must be in doubt given the Father’s evidence concerning that, it is plain on the Mother’s material that a conclusion that she has now acquiesced in the children being in Australia would be inescapable. Of course, as a ground of defence acquiescence only arises were the Applicant to establish each of the positive elements it must establish under the Regulations.

8. In circumstances where the Mother, as I find, has acquiesced in the position that the children remain in Australia, I would, even if the application were pressed and the elements established, in the circumstances exercise the discretion to refuse to make a return Order. I refer to Director-General, Department of Child Safety v S (2005) FLC 93-249 and Department of Community Services v Crowe (1996) FLC 92-717.

9. On 29 May 2012, at an interim hearing of the application, I made a number of Orders, including Orders in relation to the placing of the names of the children on the Airport Watch List and Orders for the Father to surrender to a Registrar of the Family Court of Australia all current passports relating to himself and the children. There were also Orders restraining the Father from departing the Commonwealth of Australia and the usual Orders to secure the stability of arrangements pending the determination of this application.

10. The Father has provided the Court an assurance that he is content for the passports to remain in the possession of the Registrar of this Court pending a further hearing of the Mother’s proposed application for parenting Orders. Likewise, the Father does not pursue a discharge application at this point of the Order in relation to the children’s names remaining on the Airport Watch List.

11. A question arose this morning as to where the Mother would commence her application for parenting Orders, and that is a matter that ought be resolved when the Mother has the benefit of legal advice and by, hopefully, negotiation with the Father.

12. In circumstances where I am satisfied that the Mother seeks to make an application for parenting Orders, I am content to treat her submissions to me this morning as an oral application under the Family Law Rules 2004 (Cth) for parenting Orders, and I therefore, based on that application, make Orders consistent with the previous Orders of 29 May 2012 by consent given the Father’s position in relation to a retention of passports and like Orders to preserve the position until a Court can hear, at least on an interim basis, the Mother’s formal application. I therefore give leave to the Mother to make at least an oral application for parenting Orders to support those interim Orders.

13. For those reasons, I make the Orders as set out at the commencement of these reasons.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 17 August 2012.

Associate: 

Date:  17 August 2012