Department of Community Services and Marovski

[2007] FamCA 1268

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF COMMUNITY SERVICES & MAROVSKI [2007] FamCA 1268

FAMILY LAW – CHILD ABDUCTION – Hague Convention – Application for access to child in Australia

Family Law Act 1975 (Cth)

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

APPLICANT: Director General,
Department of Community Services

RESPONDENT: Ms Marovski

FILE NUMBER: SYC 5555 of 2007

DATE DELIVERED: 26 October 2007

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

EX TEMPORE JUDGMENT OF: Steele J

HEARING DATE: 26 October 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms. Ward

SOLICITOR FOR THE APPLICANT: Legal Services Unit
Dept. of Community Services

COUNSEL FOR THE RESPONDENT: Ms. Christie

SOLICITOR FOR THE RESPONDENT: Hamish Cumming
Family Lawyers

Orders

1. That the Central Authority’s application be dismissed.

2. That the mother’s application for costs be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Department of Community Services & Marovski is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5555 of 2007

DIRECTOR GENERAL, DEPARTMENT OF COMMUNITY SERVICES  

Applicant

And

MS MAROVSKI  

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This is an application brought in the interests of the father by the Central Authority pursuant to Regulation 25 of the Family Law (Child Abduction Convention) Regulations 1986 (“the Regulations”) in respect of his daughter, S who is 14 and a half years of age and resides with her mother in the Newcastle area.

2. The parents were married in Macedonia in 1992 and the child was born in April 1993 in Macedonia.  The child S has resided for most of her life in Macedonia, despite the fact that her mother came to Australia to live shortly after her divorce in Macedonia in October 1995.  Orders made in the Magistrate’s Court at K (Macedonia) on 18 October 1995 provided for the father to have custody of the child with an order relating to child support to be paid by the mother.  In 1998 and 1999 the parents repartnered.  In 2004, the child, S visited her mother in Australia and on return to Macedonia expressed a wish to live with her mother.  In October 2004, the father signed a statement granting custody of S to the mother and on 24 December 2004 the Magistrate’s Court in K amended the orders of 18 October 1995 in relation to the custody, care and upbringing of S.  The mother was granted custody of S and ordered to “bring up and provide full support for the child”. Following the making of those orders in K, the child returned to Australia and has lived here with her mother ever since.  It appears, however, that she has not been diligent in communicating with her father.

3. On 8 December 2006, the Central Authority received an application under the Hague Convention submitted on behalf of the father, by the Macedonian Authority. The Central Authority corresponded with the mother in an attempt to reach some agreement about voluntary access arrangements but that has not been successful and on 7 August 2007 the Central Authority filed an application under Form 4 of the Regulations seeking a wide range of orders including orders restraining the child from being removed from Australia, for the recovery of the child, for orders for arrangements necessary to ensure that the child has access with the father, for the surrender of passports and for the child and the mother to be put on the P.A.S.S. Alert System.

4. The orders now sought by the Authority have been significantly downgraded and are less likely to be as daunting for the mother and for the child as the original orders sought.  The orders now sought are as follows:-

   (1)That the father of the child, […] (“the father”), be permitted to telephone the child [S] (born […] April 1993) once a month on a telephone number to be provided and at a time to be agreed with the father, and the Respondent is to encourage the child to speak to her father.

   (2)That telephone access as set out in Order 1 be subject to the child’s wishes.

   (3)That the father be permitted to send letters, email, gifts and photographs to the child and that the Respondent shall provide these to the child.

   (4)That, if the child expresses a wish to communicate in writing with her father, the Respondent is to facilitate such communication by mail or email.

   (5)That the Respondent will provide the father by mail, copies of the child’s school reports within 4 weeks of receiving them.

   (6)That the Respondent will provide the father by mail, photographs or DVD recordings of the child at least 3 times per year, including copies of the child’s school photographs.

   (7)That, if the child expresses a wish to see her father in Macedonia, the Respondent will facilitate such access as agreed with the father, and the father will be responsible for paying for the child’s return ticket from Australia to Macedonia.

   (8)That, if the father travels to Australia to see the child, the Respondent will encourage the child to have access with her father, provided that the father give at least 4 weeks written notice of his intention to travel to Australia to see the child.

   (9)That the access as set out in Order 8 be subject to the child’s wishes.

   (10)That both the father and the Respondent will keep each other advised of their current residential address and telephone numbers.    

5. The mother, Ms Marovski, who is the respondent to the application, filed a Form 4A Answer and Cross Application seeking orders that the child S have access with her father, such as she requests. Today her counsel simply seeks an order that the Central Authority's application be dismissed.  No objection is taken to that oral amendment and change of position in spite of the absence of an Amended Answer. 

6. It can be seen that this is not the normal type of Hague Application where there is an allegation that the child has been abducted from her country of habitual residence or has been wrongfully retained in Australia.  Indeed, it is apparent that the child came to Australia to live with her mother following the making of orders in Macedonia, which anticipated such a course occurring.  A Hague Report has been obtained from Ms. L, a Family Consultant who has recorded the child’s wishes, indicating that the child did not have a close relationship with her father in Macedonia and did not get on with her step-mother.  She was said to have been adamant that she did not wish to speak to her father on the phone and has a very strong negative view regarding spending time with her father.  She expressed concern about seeing her father in Australia and was scared of what he might do and was worried about his response to her since she had refused to have any form of contact with him.  She expressed a strong fear of returning to Macedonia.  The Consultant who prepared the Report said that the child’s objection to spending time with or communicating with her father went beyond an expression of preference or ordinary wishes and that she was an intelligent and thoughtful 14 year old girl who had clearly articulated her thoughts about her relationship with her father.  The Consultant thought that given S’ age and mature outlook it was appropriate that her views be given significant weight.

7. Regulation 24 (1)(b) of the Regulations provides that the Commonwealth Central Authority must take action to establish rights of access if it is satisfied the request is in accordance with the Convention. It is apparent that the matter has been transferred to the State Central Authority, as envisaged by Regulation 24(4)(a) of the Regulations. The Applicant argues that it must be inferred that the Commonwealth Central Authority was satisfied that the request is in accordance with the Convention by virtue of the transfer to the New South Wales Central Authority. It is not at all clear to me that follows. It is my view that Regulation 24(4)(a) makes provision for the Commonwealth Central Authority to transfer the request to the State Central Authority without first forming any view or reaching a level of satisfaction that the application by the Macedonian authorities is in accordance with the Convention. The fact that the Commonwealth Central Authority has transferred the matter to the State Central Authority does not mean that the Commonwealth Central Authority formed any particular view about the matter or that the Court would in any event be bound by the determination which it had made, if any was made.

8. My reading of the material from the father and the Macedonian Authority would seem to indicate that there was no order made or even understanding reached that the father would have access to the child once she was in Australia.  It seems that the father envisaged such events occurring but it is not clear to me that any such arrangement was made, nor that there is, on their face, any legitimate right of access arising from the orders made in Macedonia.

9. It is, of course, true, as the Applicant submits, that section 111B(1)(e) of the Family Law Act does provide that any Regulations made to give effect to Article 21 of the Convention may have effect regardless of whether an order has been made under a law in force in the Convention country with regard to rights of access. The Macedonian Authority has asserted that the mother has breached Article 21 of the Convention.

10. The Australian law, which the Court has to enforce, is in the form of the Regulations and not the Convention itself. However, Article 21 of the Convention is in the following terms:-

    An application to make arrangements for organizing or securing the effective exercise of rights of access may be presented to the Central Authorities of the Contracting States in the same way as an application for the return of a child.

    The Central Authorities are bound by the obligations of co-operation which are set forth in Article 7 to promote the peaceful enjoyment of access rights and the fulfilment of any conditions to which the exercise of those rights may be subject. The Central Authorities shall take steps to remove, as far as possible, all obstacles to the exercise of such rights.

11. The Central Authorities, either directly or through intermediaries, may initiate or assist in the institution of proceedings with a view to organizing or protecting these rights and securing respect for the conditions to which the exercise of these rights may be subject.

12. It does not appear, as asserted, that the mother has breached the substance of Article 21 as spelt out. 

13. The order made in Macedonia on 24 December 2004 gave custody of the child to the mother and provided for her to bring up and provide full support for the child.  There is no suggestion that there was any form of continuing parental responsibility residing in the father and no suggestion of the retention in him of any residual right of access. 

14. The Central Authority has fully pursued all options in presenting the case on behalf of the father.  It has provided the Court with an extract of family law legislation said to be applicable in the Republic of Macedonia in 1992.  This extract has been provided by the Central Authority here and was not obtained through the Central Authority in Macedonia.  The Central Authority here is not in a position to say whether that extract contains the present law.  If it does contain the present law, there may be an available argument arising from Article 80 of the legislation if it is in force, but I cannot be satisfied, in all the circumstances, that it remains in force in that form.

15. It follows, I think, that it is not established that the father has any right of access so that the basis for the application fails.  Accordingly, I would dismiss the Central Authority's application.

16. I should record that if I am wrong and the father does have rights of access, then I would not, in the exercise of my discretion, make the orders sought because of the strong views expressed by the child, whose views should be given considerable weight and because in all the circumstances it would be virtually impossible for the orders, once made, to be enforced having regard to the child's stance.

Application for costs

1. In this matter an application is made by the respondent's counsel for an order for costs against the Central Authority in reliance on s.117AA and of course, s.117.  In my view, all the circumstances do not here exist which would justify the making of an order.  In my view, the Central Authority acted reasonably in pursuing the application in the circumstances in which they did and accordingly I dismiss the application for costs.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Steele

Associate

Date:  29 October 2007