FAMILY COURT OF AUSTRALIA
| COMMONWEALTH CENTRAL AUTHORITY & SANGSTER | [2018] FamCA 765 |
| CHILD ABDUCTION – Hague Convention – Objection to return – Grave risk of harm – Conditions to return. |
| Family Law (Child Abduction Convention) Regulations 1986 r 16(3) |
| DP v Commonwealth Central Authority; JLM v Director-General NSW Department of Community Services (2001) 206 CLR 401 De L v Director General Department of Community Services NSW (1996) 187 CLR 640 Re M (Republic of Ireland) (Child’s Objections) (Joinder of Children to Appeal) [2015] EWCA Civ 26 Re T (Abduction: Child's Objections to Return) [2000] 2 FLR 192 B v K (Child Abduction [1993] 1 FCR 382 In re D (A Child)(Abduction: Rights of Custody) [2007] 1 AC 619; [2006] UKHL 51 McCarthy v McCarthy (1994) SLT 743 Re E (Children) (FC) [2011] UKSC 27 MW v Director-General, Department of Community Services [2008] HCA 12 TB v JB [2000] EWCA Civ 337 |
| APPLICANT: | Commonwealth Central Authority |
| RESPONDENT: | Ms Sangster |
| INDEPENDENT CHILDREN’S LAWYER: | Mr P Fitzgerald |
| FILE NUMBER: | HBC | 1189 | of | 2017 |
| DATE DELIVERED: | 14 August 2018 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Hobart |
| JUDGMENT OF: | Bennett J |
| HEARING DATE: | 3, 4, 5 & 6 April 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Sekler |
| SOLICITOR FOR THE APPLICANT: | Attorney General's Department – Australian Government Solicitor |
| COUNSEL FOR THE RESPONDENT: | Ms Mooney |
| SOLICITOR FOR THE RESPONDENT: | Dobson Mitchell Allport Hobart |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Pat Fitzgerald |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Commission of Tasmania |
Orders
IT IS ORDERED THAT:
The application of the Commonwealth Central Authority filed 21 December 2017 in relation to the child X born … 2003 (“X”) be and is hereby dismissed.
Within 35 days of compliance by the requesting parent, Mr Lahbabi, with paragraphs 4 and 6 of this Order, the children Y born … 2010 (“Y”) and Z born … 2013 (“Z”) be returned to The Kingdom of the Netherlands (“The Netherlands”) pursuant to Regulation 14 of the Family Law (Child Abduction) Regulations 1986 and in the company of the mother.
The mother do all acts and things necessary to facilitate the conditional return of the children Y and Z to The Netherlands, the child X be at liberty to travel with Y, Z and the mother on their return to The Netherlands.
Within 14 days the requesting parent:-
(a) pay the sum of €3,000 into an account nominated by the independent children’s lawyer and the independent children’s lawyer forthwith advise the requesting parent of the details of the account into which the monies are to be transferred and such monies be held until disbursed in accordance with paragraph 7 of this Order;
(b) pay into the bank account nominated by the independent children’s lawyer an amount specified by the independent children’s lawyer as necessary to purchase non-refundable economy class airfares for X, Y and Z (“the children”) and the mother from Hobart to City Z.
Within 24 hours of the arrival of the children in The Netherlands, the mother advise…
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- COMMONWEALTH CENTRAL AUTHORITY & SANGSTER [2018] FamCA 765
- Case
- [2018] FamCA 765
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether the application for the child X should be dismissed and, in relation to children Y and Z, whether they should be returned to The Netherlands pursuant to Regulation 14 of the Family Law (Child Abduction) Regulations 1986. The court was also required to determine the conditions and arrangements for the children's return, including financial provisions and protective measures for the mother and children in The Netherlands.
Bennett J dismissed the application concerning child X. For children Y and Z, the court ordered their return to The Netherlands in the company of the mother, subject to the requesting parent complying with specific conditions. These conditions included payment of €3,000 and the cost of airfares for the mother and children, and the obtaining of enforceable orders in The Netherlands. These orders were designed to provide interim protection for the children and mother, including injunctions against the requesting parent, and to ensure the children resided with the mother with sole parental responsibility for a specified period. The court also discharged previous orders relating to the children being placed on an airport watch list and the surrender of passports, and allowed the mother to collect the passports. Liberty was granted to the parties to apply regarding the implementation of the orders, particularly concerning the obtaining of enforceable orders in The Netherlands.
Orders
Orders of the court
IT IS ORDERED THAT:
1.
The application of the Commonwealth Central Authority filed 21 December 2017 in relation to the child X born … 2003 (“X”) be and is hereby dismissed.
2.
Within 35 days of compliance by the requesting parent, Mr Lahbabi, with paragraphs 4 and 6 of this Order, the children Y born … 2010 (“Y”) and Z born … 2013 (“Z”) be returned to The Kingdom of the Netherlands (“The Netherlands”) pursuant to Regulation 14 of the Family Law (Child Abduction) Regulations 1986 and in the company of the mother.
3.
The mother do all acts and things necessary to facilitate the conditional return of the children Y and Z to The Netherlands, the child X be at liberty to travel with Y, Z and the mother on their return to The Netherlands.
4.
Within 14 days the requesting parent:-
(a) pay the sum of €3,000 into an account nominated by the independent children’s lawyer and the independent children’s lawyer forthwith advise the requesting parent of the details of the account into which the monies are to be transferred and such monies be held until disbursed in accordance with paragraph 7 of this Order;
(b) pay into the bank account nominated by the independent children’s lawyer an amount specified by the independent children’s lawyer as necessary to purchase non-refundable economy class airfares for X, Y and Z (“the children”) and the mother from Hobart to City Z.
5.
Within 24 hours of the arrival of the children in The Netherlands, the mother advise the independent children’s lawyer in writing or electronically that the children have entered The Netherlands safely and on the next working day the independent children’s lawyer notify the applicant Central Authority and the father that the children have been returned and the date upon which they entered The Netherlands and the applicant Central Authority notify the Central Authority in The Netherlands accordingly.
6.
As soon as practicable the requesting parent do all acts and things necessary to obtain a declaration of enforceability or render enforceable as between himself and the mother according to the law of the Netherlands orders which provide as follows:-
(a) The requesting parent be restrained by injunction from contacting or approaching the children (or any of them) and from causing, permitting or suffering the children to be contacted or approached by his other family members for a period of three weeks from the date of the return of the children to The Netherlands;
(b) The requesting parent be restrained by injunction from attending at, or knowingly being within 50 meters of any place at which the children (or any of them) or the mother reside, attend school or are employed otherwise than is provided by an order of a court of competent jurisdiction in The Netherlands;
(c) The requesting parent be and is hereby restrained by injunction from instituting any parenting proceedings in relation to the children (or any of them) which require the mother to prepare documents or to appear at court earlier than the expiration of three weeks following the return of the children to The Netherlands;
(d) Until or unless a court of competent jurisdiction in The Netherlands orders otherwise or for the period of three weeks following the return of the children to The Netherlands, whichever last occurs:-
(i) The children reside with the mother;
(ii) The mother have sole parental responsibility for the children such as will enable her to enrol the children at school and seek medical or like treatment for them and to receive any government income tested allowance, pension or benefit with which to support herself and the children;
(iii) The requesting parent and the mother be and are hereby restrained by injunction from causing, permitting or suffering the children, or any of them, to be removed from The Netherlands without the prior written consent of the other parent;
(iv) The mother inform and keep informed the Central Authority for The Netherlands or its nominee of the residential address and contact details of the children, and any changes thereto, AND IT IS REQUESTED that the said Central Authority (or its nominee) not disclose those details to the father otherwise than pursuant to an order of a court on competent jurisdiction in The Netherlands.
(e) An order in accordance with paragraph 5 of this Order.
7.
The independent children’s lawyer disperse the monies referred to in paragraph 4 hereof as follows:
(a) As to the monies referred to in 4(b), in payment of the return airfares for the children X and Y together with the mother and X on economy class air tickets;
(b) As to the monies referred to in 4(a), to the mother within 24 hours of the children Y and Z having been returned to The Netherlands in her company;
(c) Otherwise, by prior written agreement between the mother and the applicant Central Authority.
8.
Until a letter from an officer of the Secretary of the Attorney General’s Department, Commonwealth Central Authority is received by the Australian Federal Police advising of the travel arrangements made for the return of the children Y, Z and X to the Netherlands, the Australian Federal Police retain the name of the children on the airport watch list enforced at all points of arrival and departure in the Commonwealth of Australia.
9.
Paragraph 1 of the Order made by the Honourable Justice Benjamin on 21 December 2018 (being the order placing the children Y, Z and X on the Airport Watch List) be discharged upon presentation of the children X, female, born … 2003, Y, female, born … 2010 and Z, female, born … 2013 for boarding the flight to the Netherlands as advised by the officer of the Secretary of the Attorney General’s Department, Commonwealth Central Authority AND IT IS REQUESTED that the Australian Federal Police give effect to this Order by removing the said children from the Airport Watch List upon presentation of the children for boarding.
10.
A sealed copy of these orders be provided by the Melbourne Registry of the Court to the Marshal of the Family Court of Australia, the Commissioner of the Federal Police and the police Forces and services of the States and Territories of the Commonwealth of Australia and the Secretary of the Commonwealth Department of Foreign Affairs and Trade.
11.
Paragraph 2 of the Order made by the Honourable Justice Benjamin on 21 December 2018 (being the order for the surrender of the passports of the mother and the children Y, Z and X) be discharged and the mother be at liberty to collect all and any of the passports upon presentation of this Order.
12.
Upon presentation of the mother and the children at the airport for boarding the nominated flight to the Netherlands paragraph 4 of the Order made by the Honourable Justice Benjamin on 21 December 2018 (being the order restraining the mother from changing the usual day to day residence of the children) be discharged.
13.
For the avoidance of doubt, the Regulation 26 report by Ms B dated 16 March 2018 may be published by the Respondent Mother and/or Father and/or any representative for the children for the purpose of obtaining advice, giving instructions, and/or participating in negotiation, mediation and proceedings in The Netherlands and/or applying for legal assistance to do so.
14.
The time within which any Notice of Appeal may be lodged be, and is hereby, extended to one month following the publication of my reasons for decision.
15.
There be liberty to the parties to apply on short notice in relation to implementation of this Order including the obtaining of enforceable orders in The Netherlands pursuant to Chapter IV of the Hague Convention of 1996 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children.
IT IS DIRECTED:
16.
That all exhibits tendered in these proceedings remain on the Court file.
17.
That the Subpoenaed Documents Clerk of the Hobart Registry of the Court return any documents produced on subpoena to the owner after the expiry of the time in which an appeal may be lodged.
Note: The form of the order is subject to the entry of the order in the Court’s records.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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