HILTON & SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
[2015] FamCA 965
•28 October 2015
FAMILY COURT OF AUSTRALIA
| HILTON & SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES | [2015] FamCA 965 |
FAMILY LAW – PRACTICE AND PROCEDURE – Stay – Application for a stay of a return order made pursuant to the Family Law (Child Abduction Convention) Regulations 1986, pending determination of the appeal by the Full Court – Where the appeal is bona fide and to refuse the stay would render the appeal nugatory – Application granted, conditional upon the applicant mother pursuing her appeal expeditiously.
| Family Law Act 1975 (Cth) |
| APPLICANT: | Ms Hilton |
| RESPONDENT: | Secretary, Department Of Family And Community Services |
| FILE NUMBER: | SYC | 4476 | of | 2015 |
| DATE DELIVERED: | 28 October 2015 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | McClelland J |
| HEARING DATE: | 28 October 2015 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Ms Carter of GP Legal |
SOLICITOR FOR THE RESPONDENT: | Mr Vassallo |
Orders
THE COURT ORDERS THAT:
The Orders made by McClelland J on 9 October 2015 be stayed pending the completion of the Appeal filed on 28 October 2015 (“the Appeal”) on the conditions set out below:
a.The applicant prosecute the Appeal expeditiously including to the extent necessary within seventy-two (72) hours by filing an application for expedition of the hearing of the Appeal;
b.The applicant is to comply with all directions of the Registrar of the Appeals Registry with respect to the Appeal; and,
c.The legal representatives for the parties are to attend on the Registrar of the Appeals Registry forthwith to make necessary arrangements for the Appeal to be expeditiously dealt with.
THE COURT FINDS THAT:
The mother, Ms Hilton, and persons associated with her have:
a.published by electronic means and disseminated to the public or section of the public an account of the Family Law (Child Abduction) proceedings identified by the file number: (P) SYC4476/2015;
b.identified the mother as a party to the proceedings by electronic means;
c.provided particulars by electronic means that are sufficient to identify the mother and the child, L born … 2013, (“the child”) to a member or
d.the section of the public to which the account is disseminated; and,
e.accompanied the account with a picture of the respondent mother and the child.
THE COURT FURTHER ORDERS THAT:
The mother and persons associated with her are ordered to do all things to remove the publication forthwith.
This order applies during the proceedings and continues to apply after their conclusion, prohibiting any publication of the proceedings in newspapers, periodical publications, radio or television broadcasts or by any other electronic means.
THE COURT NOTES THAT:
A.The legal practitioner for the mother undertakes to communicate Orders 3 and 4 above to the mother and the persons associated with her who have posted notices to Facebook.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Hilton & Secretary, Department of Family and Community Services has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 4476 of 2015
| Ms Hilton |
Applicant
And
| Secretary, Department Of Family And Community Services |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
In this matter, the applicant mother applies for a stay of the orders made by this Court on 9 October 2015. I refer to my judgment in that matter, as it sets out in some detail the history of this family and the circumstances which gave rise to the original application by the Central Authority, and my decision of 9 October 2015,[1] which in turn resulted in the mother’s appeal filed on 27 October 2015 and the stay application, which was filed at the same time. It is noted that there is one child affected by the deliberations and the orders made by me on 9 October 2015. In this case, the child is L born in 2013 (“the child”).
[1] Secretary, Department of Family and Community Services & Hilton [2015] FamCA 849.
The Central Authority has previously sought orders for the return of the child to Norway and, for reasons set out in my judgment of 9 October 2015, I found that the application by the Central Authority satisfied the Court that the child’s removal from Norway was wrongful under sub-regulation 16(1A) of the Family Law (Child Abduction Convention) Regulations 1986. I further found that the mother had not established that the circumstances of the case fell within the exception set out in sub-regulation 16(3)(b). In those circumstances, subregulation 16(1) required me to make an order that the child be returned to the country of his habitual residence prior to removal - that is to Norway.
The applicant mother has lodged an appeal and this stay application in a timely manner. That requires me to consider the matters relevant to the stay application. I have been assisted by a chronology and brief submissions provided by the parties.
The application necessitates the Court considering a number of matters including the merits of the appeal. In this case, the appeal relates to quite a complex question as to whether the mother’s psychological health would be so affected by her returning to Norway with the child that it would impact upon her parenting ability. Most significantly, if that occurs, would the child be placed at a grave risk of physical or psychological harm or otherwise placed in an intolerable situation.
I accept that the appeal is bona fide and not filed simply for the express purpose of frustrating or delaying the implementation of the Court’s orders.
I next turn to consider the consequences of granting or refusing to grant the stay. Most significantly, such a refusal would in the event of the appeal being dismissed have resulted in delaying the child’s return, however that delay will be for a relatively short period of time. Inquiries made by my Associate indicate prospects of the appeal being heard as early as the week commencing 16 November 2015.
On the other hand, refusing the stay would clearly require the mother and the child to leave Australia before the Full Court had the opportunity of reviewing my decision. This would be a matter of great consequence for the mother and the child.
For all of those reasons, I have come to the view that the consequences of refusing to grant the stay would have serious implications for the mother and child. Whereas granting the stay would cause a relatively short delay in complying with Australia’s obligations pursuant to the Hague Convention on Civil Aspects of International Child Abduction 1980.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McClelland delivered on 28 October 2015.
Associate:
Date: 09.11.2015
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