Department of Communities and Justice and Sarapo

[2019] FamCA 828

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF COMMUNITIES AND JUSTICE & SARAPO [2019] FamCA 828

FAMILY LAW – PRACTICE AND PROCEDURE – Application for adjournment where international litigation awaiting determination – potential exception to obligatory return of child under Hague Convention.

Family Law Act 1975 (Cth)
Family Law (Child Abduction Convention) Regulations 1986 (Cth)
Hague Convention on the Civil Aspects of International Child Abduction

APPLICANT: Secretary, Department of Communities and Justice

RESPONDENT: Ms Sarapo

FILE NUMBER: SYC 5558 of 2019

DATE DELIVERED: 30 October 2019

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 30 October 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Harper

SOLICITOR FOR THE APPLICANT: Department of Communities and Justice

COUNSEL FOR THE RESPONDENT: Dr Behrens

SOLICITOR FOR THE RESPONDENT: Elringtons

Orders

1. The Application for an adjournment is refused.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Department of Communities and Justice & Sarapo has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: SYC 5558 of 2019

Secretary, Department of Communities and Justice

Applicant

And

Ms Sarapo

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. I am asked to rule on an adjournment application.  In doing so I note the exchanges with counsel.

2. Regulation 1A sets out the objective of the Family Law (Child Abduction Convention) Regulations 1986(Cth) which are reflective of s 111B of the Family Law Act 1975 (Cth) which authorises the Regulations.  Regulation 1A refers to both the preamble and Article 1 of the Convention on the Civil Aspects of International Child Abduction.  Both emphasise the prompt return of children who have been wrongfully removed to or retained.  The structure of the Regulations provides an obligatory remedy subject to an exception being made out.  The consequence of an adjournment is a potential delay of an obligatory remedy.

3. At this stage, without having established an exception, the application for an adjournment is heavily reliant upon the Central Authority taking a particular action.  The taking of that step is dependent upon something occurring in Chile, being the possible determination of a case, in a possible manner, in a possible timeframe.  The prediction of that is reliant upon evidence, the weight and veracity of which cannot be assessed in a manner that gives rise to a likelihood that what is deposed to will, in fact, take place.  If it does not take place in that possible timeframe it has been indicated that no further adjournment will be sought in any event.

4. In the light of the objects of the Regulations and as yet without having an exception established, the possible conduct of Chilean litigation is insufficient to justify the adjournment.  That is the case even though it is unclear that the proceedings will be able to be finalised today and it is a matter that may require revisiting if an exception is established and a discretion arises under that exception.

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 30 October 2019.

Associate: 

Date:  1 November 2019