CENTRAL AUTHORITY & WAGEMAN

[2012] FamCA 1012

FAMILY COURT OF AUSTRALIA

CENTRAL AUTHORITY & WAGEMAN [2012] FamCA 1012

FAMILY LAW – CHILD ABDUCTION – Hague Convention

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

APPLICANT: Central Authority

RESPONDENT: Ms Wageman

FILE NUMBER: SYC 3125 of 2012

DATE DELIVERED: 3 December 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Johnston J

HEARING DATE: 3 December 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Deane, Australian Government Solicitor’s Office

SOLICITOR FOR THE RESPONDENT: Ms Middleton, Paul & Paul Lawyers

IT IS NOTED that publication of this judgment by this Court under the pseudonym Central Authority & Wageman 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 SYDNEY

FILE NUMBER: SYC 3125 of 2012

Central Authority

Applicant

And

Ms Wageman

Respondent

REASONS FOR JUDGMENT

1. This is an application by Ms Wageman to whom, for convenience, I shall refer as the mother, for a variation of orders which were made by this Court on 28 November 2012.

2. The effect of those orders was to require the mother to return the two children of her relationship with Mr Hemming, the children’s father, to Sweden pursuant to the Family Law Child Abduction Convention Regulations not later than 16 December 2012. Those children are B born … September 2009 and C born … April 2011.

3. These proceedings had been before the Court for some time and the proceedings were back before the Court on 28 November 2012 on a remitter from the Full Court of this Court.

4. To the parties’ credit, on 28 November 2012, there was agreement that the mother would voluntarily return with the children to Sweden.  Accordingly, the only issues that were before the Court on 28 November 2012 were the conditions of the return, such as when the mother would return with the children, how she would return, what the passport situation would be and some other matters of a machinery nature.

5. On that occasion there was discussion about passports for the children.  Emergency Passports had been issued by the Swedish authorities to enable the children to travel directly between Australia and Sweden.

6. There was some discussion on that occasion about whether those passports would permit the mother an overnight stay with the children in Hong Kong.  My recollection is that she has a brother who works and lives in Hong Kong.  The mother’s plan was to travel to Hong Kong with the children, stay overnight with her brother, and then he would assist her with the children by travelling with them to Sweden.

7. The father objected to that course but it seemed to me that that was a matter which was in the interests of the children because the journey between Australia and Sweden would be a long and arduous one.  Bearing in mind the young ages of the children, it seemed to be sensible for a stopover to be undertaken.  The Central Authority did not oppose that course on the basis that the children would be travelling on their emergency passports.

8. As it has turned out, the Court is informed that the children’s emergency passports do not permit entry into Hong Kong. 

9. In these circumstances the mother seeks by way of what is an oral application, that the passports which the Court is holding in respect of the children, be released to the mother so that she can make the arrangements and travel with the children between Australia, Hong Kong and Sweden.

10. There are submissions, both from the Central Authority and also from the father, who has remained in Australia having come here from Sweden for the 28 November 2012 hearing, opposing what the mother is now seeking.  The father is worried that the mother might be a flight risk.

11. In respect of this matter, I note that Hong Kong is a member of the Hague Convention so that the facilities under that Convention would be able to be used to require return of the children from Hong Kong to Sweden, if that became a problem.

12. There is no evidence before the Court that the mother has some connection with a country other than Australia, Sweden and Hong Kong.  There is no evidence of any intention by her not to return to Sweden via Hong Kong.  In fact, she assures this Court that she will return to Sweden after a 36 hour stop over in Hong Kong.  It seems to me to be somewhat of a long shot that she might be making an arrangement not to return to Sweden. 

13. I formed the view on the previous occasion that it was reasonable, given the young ages of the children, for the mother to want her brother in Hong Kong to travel with her to assist her with the children including when she enters Sweden.  In my view, that is still a reasonable proposal.

14. Although, initially I expressed the view that this Court ought to release the passports to enable the mother to be able to travel as she indicated to the Court on the previous occasion she wished to do, within moments, I had a concern that there remained a slight risk that the mother might not proceed to Sweden after having arrived in Hong Kong.  I then expressed my concern and invited further submissions from the mother’s solicitor, from the solicitor for the Central Authority and from the father.

15. Ultimately, I have changed my mind.  My concern is that under the Convention, Australia has an obligation to order return of the children to Sweden.  I had thought this would be in accordance with what the emergency Swedish passports would enable but with a safeguard that they would not facilitate travel elsewhere.

16. To provide the mother with the passports held by the Court could facilitate travel by the children somewhere other than Sweden which would not be in accordance with Australia’s obligations under the Convention.

17. In these circumstances I indicated that I did not propose to grant the application.  I also indicated that I thought there should be further discussions between the parties and that I would be available each day this week to provide assistance if required.

I certify that the preceding seventeen (17) paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Johnston delivered on 3 December 2012.

Associate:     

Date:              5 December 2012