Director General, New South Wales Department of Community Services and Sharmain

[2008] FamCA 288

FAMILY COURT OF AUSTRALIA

DIRECTOR-GENERAL, NEW SOUTH WALES DEPARTMENT OF COMMUNITY SERVICES & SHARMAIN [2008] FamCA 288

FAMILY LAW – CHILD ABDUCTION – HAGUE CONVENTION – Adjournment application

APPLICANT: Director-General NSW Department of Community Services

RESPONDENT: Ms Sharmain

FILE NUMBER: SYC 707 of 2008

DATE DELIVERED: 24 April 2008

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: The Hon. Justice Rose

HEARING DATE: 24 April 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: S. Christie

SOLICITOR FOR THE APPLICANT: Department of Community Services Legal Services Unit

COUNSEL FOR THE RESPONDENT: T. Tockar

SOLICITOR FOR THE RESPONDENT: Simon Diab & Associates

Orders

1. That the application for adjournment of the proceedings is dismissed.

2. That counsel lodge and serve written submissions with the associate to The Honourable Justice Rose with the front sheet endorsed with the date and time served as follows:

   (a)       On behalf of the Respondent by 5.00pm 9 May 2008.

   (b)       On behalf of the Applicant by 5.00pm 16 May 2008.

   (c)       On behalf of the Respondent in reply by 5.00pm 23 May 2008.

3. That a Statement of Agreed Facts with Chronology be lodged with the associate to The Honourable Justice Rose by 5.00pm 2 May 2008.

IT IS NOTED that publication of this judgment under the pseudonym Director-General NSW Department of Community Services and Sharmain is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 707 of 2008

Director-General NSW Department of Community Services 

Applicant

And

Ms Sharmain

Respondent

REASONS FOR JUDGMENT

1. In this matter an oral application is made by the Applicant for adjournment of the proceedings.

2. The basis of the application was to seek to adduce further expert evidence on an issue in contention namely, whether or not the father had rights as to custody at the time of the alleged wrongful retention by the mother of the child the subject of the proceedings namely, on 26 June 2007, when the mother left with the child, as well as her child of a prior relationship, from the United States of America to Australia.

3. When this matter commenced before me I was informed by counsel for the Applicant that the matter was ready to proceed.

4. I was also informed by counsel for the Respondent that he was ready to proceed.

5. It was only after I raised some potential difficulties with the nature and substance of the evidence in respect of the matter of a wrongful retention of the child, in terms of breach of the father’s rights of custody, that the adjournment application was then made.

6. In the course of hearing submissions I raised with both counsel, and especially counsel for the Applicant, the matter of terms that might be imposed for any adjournment which would reflect meeting the Respondent’s costs, which potentially would be thrown away should an adjournment be granted.  In the course of doing so it was recognised that there is a legislative obstacle to making an order for costs against the Central Authority.  Arguably an order could be made in terms of an interlocutory basis as opposed to being in relation to disposal of the substantive proceedings.

7. In terms of limiting the hearing time and ensuring that the matter could be back before me at the earliest available date given that hearing might take less time than might otherwise be the case, I invited counsel for the Applicant to consider the procedure which applies in this Court pursuant to the Court Rules, for a single joint expert to be appointed on the basis of receiving nominated names of suitably qualified, knowledgeable and experienced American lawyers with the possibility that the fee so involved would be met by the Central Authority.

8. I provided a short adjournment so that counsel for the Applicant in particular could obtain further instructions.  Upon the resumption of the hearing counsel for the Applicant informed me that her instructions were that an order for costs would not be consented to given the obstacles that lie in the path of any order for costs being made against the Central Authority, nor would the Applicant enter into an agreement inter partes for payment of costs that might otherwise be thrown away, or provide an undertaking.

9. Secondly in relation to further expert evidence, counsel’s instructions were that a single expert should not be appointed for the reasons that were advanced by her, notwithstanding that the legal issue in terms of the law in the United States was an issue of significance in the case and that there was the possibility of having adversarial experts with the consequential implications in terms of hearing time, not to mention increased legal costs, at least for the Respondent.

10. Notwithstanding the submissions made capably by counsel for the Applicant, in view of her instructions not to even reach an agreement, or even contemplate one, for payment of the Respondent’s costs that would be thrown away by an adjournment today and having regard to the fact that counsel informed me when this matter opened that the Applicant was ready to proceed and would be able to deal with the issue of the law in the United States for the reasons explained by her, I have determined that the adjournment will be refused.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose.

Associate: 

Date:  24 April 2008