Director-General, Department of Community Services and Frampton (No. 3)
[2008] FamCAFC 64
•8 May 2008
FAMILY COURT OF AUSTRALIA
| DIRECTOR-GENERAL, DEPARTMENT OF COMMUNITY SERVICES & FRAMPTON (NO. 3) | [2008] FamCAFC 64 |
| FAMILY LAW - APPEAL – HAGUE CONVENTION – Where the Full Court had set out proposed machinery orders for the return of the mother and the child to the United Kingdom in previous reasons for judgment and ordered that each party file brief submissions indicating their agreement or otherwise with those proposed orders – Where written submissions were subsequently received by both parties – Machinery orders made. |
| Family Law (Child Abduction Convention) Regulations 1986 |
| APPELLANT: | Director-General, Department of Community Services (NSW) |
| RESPONDENT: | Ms Frampton |
| FILE NUMBER: | SYC | 1445 | of | 2007 |
| APPEAL NUMBER: | EA | 13 | of | 2008 |
| DATE DELIVERED: | 15 May 2008 |
| PLACE DELIVERED: | Brisbane |
| JUDGMENT OF: | Bryant CJ, Finn and May JJ |
| HEARING DATE: | By way of written submissions |
LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 14 January 2008 |
| LOWER COURT MNC: | [2008] FamCA 163 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms Christie |
| SOLICITOR FOR THE APPELLANT: | International Kidnapping Services, NSW Department of Community Services |
| COUNSEL FOR THE RESPONDENT: | Ms Hartstein |
| SOLICITOR FOR THE RESPONDENT: | Slade Manwaring |
Orders
That Order 3 of the orders made by the Full Court of the Family Court of Australia on 11 September 2007 be varied to provide that the State Central Authority and/ or the Mother and/ or the Father of the child, L, make such arrangements as are necessary for L to return to Scotland in the company of her Mother on a date agreed in writing between the State Central Authority and the Mother, not before the Mother’s unborn child (hereafter referred to as “the infant”) has reached the age of two (2) months but before the infant has reached the age of three (3) months.
To facilitate the agreement as to the date of travel referred to in Order 1, the mother shall notify the State Central Authority in writing no later than three (3) days after the birth of the infant of the infant’s date of birth.
That Orders 5, 6 and 7 of the orders made by the Full Court on 11 September 2007 be varied to provide as follows:
(i)That as soon as reasonably practicable after the birth of the infant, the Mother shall forthwith sign all documents and do all things necessary to apply to the appropriate United Kingdom authorities for a visa that will enable her to accompany the child, L, to the United Kingdom (departing Australia on a date no later than three (3) calendar months after the birth of the infant) and remain in the United Kingdom for a period of not less than six (6) months to enable the resolution of proceedings in the United Kingdom concerning parenting orders appropriate for L.
(ii)That simultaneously with Order 3(i) above, the Mother shall forthwith sign all documents and do all things necessary to apply to the appropriate United Kingdom authorities for a passport to enable the infant to accompany the Mother and the child, L, to the United Kingdom.
(iii)That the Mother shall notify the State Central Authority as to the outcome of her visa application within two (2) working days of it being known, notification to include the provision to the State Central Authority of any relevant documentation and the like.
(iv)That within two (2) working days of receiving notice from the Mother of the outcome of her visa application, the State Central Authority:
(a) shall forthwith notify the Father by emailed or faxed letter as to the outcome, including the provision of any relevant documentation received from the Mother; and
(b)copy the Solicitors for the Mother into all correspondence sent to the Father for the purpose of this notification.
(v)That within five (5) working days of the date shown on the emailed or faxed letter from the State Central Authority to the Father advising him that the Mother has obtained the requisite visa, the Father shall:
(a) book and pay for the airline tickets for L, the Mother and the infant to travel to the United Kingdom; and
(b)deposit into a bank account nominated by the Mother, the sum of AU$5,000 (less the amount of $1,000 to reflect the approximate loss the father incurred as a result of the aborted flights of 15 January 2008) so that it is received into the said bank account within ten (10) business days of the notification to the Father occurring.
That for the avoidance of doubt, paragraph 2.1 of the Orders dated 6 March 2007 be varied so as to allow the Mother and L to leave the Commonwealth of Australia for the purposes of giving effect to the Orders herein, and that the Australian Federal Police do give effect to the said variation.
That following the departure of L and the Mother from the Commonwealth of Australia in accordance with these Orders, the Australian Federal Police do all acts and things necessary to remove the names of the following persons from the PASS Alert System in operation at all Australian International Arrival and Departure points:
(a)[the mother]; and
(b)[the child, L].
The return Order shall lapse and the application for the return of L shall be discharged in the event of any of the following circumstances arising:
(a)in the event that the Mother’s visa application is refused; or
(b)in the event that the Father fails to provide the return airline tickets in accordance with Order 3(v)(a); or
(c)in the event that the Father fails to pay the sum of money referred to at Order 3(v)(b) by way of support for the Mother and L, in accordance with the aforesaid Order.
That both parties have liberty to apply in relation to the implementation of these orders by way of brief written submissions to the Full Court.
That the Court grants to the respondent mother a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent mother in respect of the costs incurred by the respondent mother in relation to the appeal.
IT IS NOTED that publication of this judgment under the pseudonym Director-General, Department of Community Services and Frampton is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: EA 13 of 2008
File Number: SYC 1445 of 2007
| Director-General, Department of Community Services |
Appellant
And
| Ms Frampton |
Respondent
REASONS FOR JUDGMENT
These reasons for judgment can be regarded as supplementary to reasons for judgment which we published on 29 April 2008, and in which we invited submissions from both parties directed to the form of orders which we proposed to make in relation to the matters which were the subject of our reasons of 29 April 2008.
Copies of the submissions subsequently received by both parties are annexed to these reasons.
It will be seen from the submissions that the Director General, Department of Community Services NSW (as the State Central Authority under the Family Law (Child Abduction Convention) Regulations 1986) (“the Central Authority”) has proposed an extension of the time periods contained in Orders 2(v) and (2)(v)(b), as well as additional orders requiring the mother to give the state Central Authority notification of the date of birth of the child she is currently expecting within three days of the birth, and giving both parties liberty to re-list the matter before “a single Judge of the Full Court” in respect of implementation of the orders which we will make.
It will also be seen that the solicitor for the mother states in his written submissions on her behalf, that the mother agrees with the form of orders proposed in our judgment of 29 April 2008 and that she has no objection to the amendments proposed by the Central Authority.
We will therefore make orders in the form originally proposed by us but with the amendments proposed by the Central Authority, save in relation to the following matter.
As already mentioned, the Central Authority requested liberty to re-list the matter for implementation purposes before a single Judge “of the Full Court”, that is presumably, of the Appeal Division. We see no utility in a listing for implementation purposes before either a single Judge of the Appeal Division or a single Judge of the General Division for the reason that an appeal would lie to the Full Court from a decision of a Judge of either division. Rather, we consider it would be more efficient if any matter regarding implementation of our orders, was to be determined by this Full Court, and that it should be, at least in the first instance, by way of brief written submissions. We take this view because of the disparate locations of the members of the Full Court.
Our orders therefore will be:
1. That Order 3 of the orders made by the Full Court of the Family Court of Australia on 11 September 2007 be varied to provide that the State Central Authority and/ or the Mother and/ or the Father of the child, L, make such arrangements as are necessary for L to return to Scotland in the company of her Mother on a date agreed in writing between the State Central Authority and the Mother, not before the Mother’s unborn child (hereafter referred to as “the infant”) has reached the age of two (2) months but before the infant has reached the age of three (3) months.
2.To facilitate the agreement as to the date of travel referred to in Order 1, the mother shall notify the State Central Authority in writing no later than three (3) days after the birth of the infant of the date of birth of the infant.
3.That Orders 5, 6 and 7 of the orders made by the Full Court on 11 September 2007 be varied to provide as follows:
(i)That as soon as reasonably practicable after the birth of the infant, the Mother shall forthwith sign all documents and do all things necessary to apply to the appropriate United Kingdom authorities for a visa that will enable her to accompany the child, L, to the United Kingdom (departing Australia on a date no later than three (3) calendar months after the birth of the infant) and remain in the United Kingdom for a period of not less than six (6) months to enable the resolution of proceedings in the United Kingdom concerning parenting orders appropriate for L.
(ii)That simultaneously with Order 3(i) above, the Mother shall forthwith sign all documents and do all things necessary to apply to the appropriate United Kingdom authorities for a passport to enable the infant to accompany the Mother and the child, L, to the United Kingdom.
(iii)That the Mother shall notify the State Central Authority as to the outcome of her visa application within two (2) working days of it being known, notification to include the provision to the State Central Authority of any relevant documentation and the like.
(v)That within two (2) working days of receiving notice from the Mother of the outcome of her visa application, the State Central Authority:
(a) shall forthwith notify the Father by emailed or faxed letter as to the outcome, including the provision of any relevant documentation received from the Mother; and
(b)copy the Solicitors for the Mother into all correspondence sent to the Father for the purpose of this notification.
(v)That within five (5) working days of the date shown on the emailed or faxed letter from the State Central Authority to the Father advising him that the Mother has obtained the requisite visa, the Father shall:
(a) book and pay for the airline tickets for L, the Mother and the infant to travel to the United Kingdom; and
(b)deposit into a bank account nominated by the Mother, the sum of AU$5,000 (less the amount of $1,000 to reflect the approximate loss the father incurred as a result of the aborted flights of 15 January 2008) so that it is received into the said bank account within ten (10) business days of the notification to the Father occurring.
4.That for the avoidance of doubt, paragraph 2.1 of the Orders dated 6 March 2007 be varied so as to allow the Mother and L to leave the Commonwealth of Australia for the purposes of giving effect to the Orders herein, and that the Australian Federal Police do give effect to the said variation.
5.That following the departure of L and the Mother from the Commonwealth of Australia in accordance with these Orders, the Australian Federal Police do all acts and things necessary to remove the names of the following persons from the PASS Alert System in operation at all Australian International Arrival and Departure points:
(a)[the mother]; and
(b)[the child, L].
6.The return Order shall lapse and the application for the return of L shall be discharged in the event of any of the following circumstances arising:
(a)in the event that the Mother’s visa application is refused; or
(b)in the event that the Father fails to provide the return airline tickets in accordance with Order 3(v)(a); or
(c)in the event that the Father fails to pay the sum of money referred to at Order 3(v)(b) by way of support for the Mother and L, in accordance with the aforesaid Order.
7.That both parties have liberty to apply in relation to the implementation of these orders by way of brief written submissions to the Full Court.
Application by respondent mother for a costs certificate
By submissions, dated 24 April 2008, the mother, as the respondent to the successful appeal against the orders of Le Poer Trench J of 14 January 2008 (which appeal was the subject of the orders of this Court of 3 April 2008) sought a certificate in respect of her costs incurred in relation to the appeal under s 6 of the Federal Proceedings (Costs) Act 1981.
We consider it appropriate that such a certificate be granted to the mother, and we will include such a certificate in the orders we will make.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court
Associate:
Date: 15 May 2008
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