COMMISSIONER OF POLICE SOUTH AUSTRALIA (STATE CENTRAL AUTHORITY) & WIMBORNE
[2013] FamCA 343
FAMILY COURT OF AUSTRALIA
| COMMISSIONER OF POLICE SOUTH AUSTRALIA (STATE CENTRAL AUTHORITY) & WIMBORNE | [2013] FamCA 343 |
| FAMILY LAW – CHILD ABDUCTION – Hague Convention – interim orders – matter to be listed for final determination. |
| Family Law Act 1975 (Cth) |
| RCB (as litigation guardian of EKV, CEV, CIV and LRV) v The Honourable Justice Forrest (2012) 87 ALJR 1 |
| APPLICANT: | Commissioner Of Police South Australia (State Central Authority) |
| RESPONDENT: | Mr Wimborne |
| FILE NUMBER: | ADC | 629 | Of | 2013 |
| DATE DELIVERED: | 14 May 2013 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Dawe J |
| HEARING DATE: | 14 May 2013 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Olsson |
| SOLICITOR FOR THE APPLICANT: | Crown Solicitor’s Office |
| COUNSEL FOR THE RESPONDENT: | Ms Redman |
| SOLICITOR FOR THE RESPONDENT: | Alderman Redman Lawyers and Mediators |
Orders
BY CONSENT IT IS ORDERED PENDING FINAL DETERMINATION OF THE PROCEEDINGS THAT
The child L born on … May 2003 not be removed from the State of South Australia prior to the determination of the within application and that members of the Australian Federal Police are to prevent such removal.
The Court requests the Australian Federal Police place the name of the child L born on … May 2003 (male) on the Airport Watch List (PACE) in force at all international airports of arrival and departure of the Commonwealth of Australia.
The Marshall and all officers of the Australian Federal Police and the police forces of the States and Territories are requested and authorised to give effect to these orders.
Until further order the respondent father Mr Wimborne born on … July 1977 surrender forthwith to the Registrar of the Family Court of Australia at Adelaide, any current and future passports relating to himself and the child.
IT IS FURTHER ORDERED THAT
The Hague Initiating Application is referred to the Docket Registrar for allocation of a trial date of one [1] day as soon as possible for directions (after consulting with the parties and giving appropriate directions for any further documents to be placed on the file) to prepare the matter for final hearing on the understanding that there may be limited oral evidence only and for further consideration of the question of the need for a Family Consultant’s report.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Commissioner of Police South Australia (State Central Authority) & Wimborne 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 ADELAIDE |
FILE NUMBER: ADC 629 of 2013
| Commissioner Of Police South Australia |
Applicant
And
| Mr Wimborne |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
This is the first return date for the Application by the State Central Authority in relation to orders being made for the return of L, (“the child”) to the United States of America. The child was born in May 2003 and is therefore nearly aged 10.
The documents now before the Court include the application by the State Central Authority and supporting affidavit, together with the answer and cross-application and supporting affidavit material by the father.
This matter is somewhat unusual in that, at this time, there are now ongoing proceedings in Wisconsin in the United States of America dealing with the orders which have been in place concerning the child.
The issues before the Court appear to be whether the retention of the child in Australia should be permitted on the basis of the concerns raised by the father in the documents or whether the child should be returned to Wisconsin and the determination of the orders concerning the child made there. It would appear to be clear that at the time of the child travelling from the United States of America to Australia the child was habitually resident in the United States.
The difficulty at the moment is the consideration of the best method of determining all of the issues to ensure that the Regulations are the subject of compliance and that the consideration of the answer and cross-application also take into account the material provided by the father.
I am proposing to order that the matter be listed for final determination for one day with possibly some oral evidence at a time which will be allocated after consulting with the parties and given appropriate directions for any further documents to be placed on file and that to be done as soon as possible.
I am not proposing to order an Independent Children’s Lawyer in these circumstances taking into account the High Court’s decision of RCB (as litigation guardian of EKV, CEV, CIV and LRV) v The Honourable Justice Forrest [2012] HCA 47 and the need for there to be exceptional circumstances.
Whilst this is a Hague Convention application it cannot easily fall into exceptional circumstances in that category. I decline to make the order for an Independent Children’s Lawyer. I note that there is already a guardian ad litem appointed for the child representing the issues concerning the child in the American jurisdiction.
I am able to make orders by consent in terms of paragraphs 4, 5 and 6 of the Initiating Application. The passport order will relate to the child’s Australian passport as parties now confirm that the United States of America passport has expired. The orders 4, 5 and 6 are made, pending final determination of the proceedings.
I am also being asked to make an order placing the child in the interim custody of the father, pending resolution of the proceedings. In this matter I do not consider it appropriate to make an interim order which may complicate the proceedings in Wisconsin where I consider that the parties are appropriately continuing the litigation concerning the parenting orders that should be made for the child.
Paragraph 7 in the application seeks an early date for the hearing. The orders that I make allocating the matter to the Registrar hopefully achieve what was sought in that subparagraph.
I would also ask that the legal advisors give some consideration to the complications of a cross-application in a Hague Convention matter where the applicant here is the State Central Authority and the respondent the father. The mother herself is not a party to the proceedings and yet I am being asked to make orders binding upon her, directly, in relation to the parenting orders concerning the child.
Notwithstanding there are Hague proceedings on foot there should be consideration of whether it is appropriate to join the mother as a party to these proceedings as orders are being asked to be made which relate to her rather than simply the State Central Authority pursuant to the Hague Convention. Orders are being sought, on the face of it, pursuant to the Family Law Act 1975 (Cth). I will leave that for another day for counsel to consider.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 14 May 2013.
Associate:
Date: 17 May 2013
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