Khitrova and Anor and Khitrov

[2008] FamCA 890

FAMILY COURT OF AUSTRALIA

KHITROVA AND ANOR & KHITROV [2008] FamCA 890

FAMILY LAW – CONSENT ORDERS – Minutes of consent orders executed is Belarus - Hague Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents – the Foreign Evidence Act 1994 - effect of an apostille - final parenting orders made

Hague Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents
Foreign Evidence Act 1994 (Cth) ss 3 and 37

Cabal and Another v United Mexican States and Another (No 3) [2000] FCA 1204

FIRST APPLICANT:

SECOND APPLICANT:

Ms Khitrova

Mr Stett

RESPONDENT: Mr Khitrov

FILE NUMBER: MLC 3534 of 2008

DATE DELIVERED: 19 May 2008

PLACE DELIVERED: Melbourne

PLACE HEARD:

JUDGMENT OF: Bennett J

HEARING DATE:

REPRESENTATION

COUNSEL FOR THE APPLICANTS: Ms P.A. Byrnes

SOLICITOR FOR THE APPLICANTS: Richard Calley Pty Ltd

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT: No Appearance

Orders

In the matter of Khitrova & Stett and Khitrov I make orders:

BY CONSENT IT IS ORDERED:

1. That there be orders in terms of the Minutes of Consent Orders signed by the parties.(“the Minute”).

IT IS DIRECTED:

1. That the Minute be placed upon the Court file and marked “Exhibit B”.

2. That the court will engross the orders.

3. That the reasons for judgment this day be transcribed and that copies be made available to the parties and sent to the respondent father by prepaid post.

IT IS ORDERED:

1. That the address of the respondent father, Mr Khitrov, be recorded on the records of the Court as Flat 38, …, Republic of Belarus.

2. That all outstanding Applications are dismissed and the proceedings are removed from the Active Pending Cases List.

IT IS ORDERED BY CONSENT:

1. That the mother and the stepfather have day to day joint parental responsibility of the child … born … February 1996.

2. That the said child live with the mother and the stepfather.

3. That in the event of the mother’s death, the child live with the stepfather.

4. That the child spend time with the father at times as agreed between the parties.

5. That pursuant to Sections 65DA(2) and 62B the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

IT IS NOTED that publication of this judgment under the pseudonym Khitrova & Stett & Khitrov is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 3534 of 2008

MS KHITROVA and MR STETT

Applicants

And

MR KHITROV

Respondent

REASONS FOR JUDGMENT

1. I have before me the application of the mother Ms Khitrova and her husband Mr Stett, pursuant to which they seek orders that they have parental responsibility for the child born in February 1996, that the child live with them, that in the event of the mother's death the child live with the stepfather and the child spend time with the father, Mr Khitrov by agreement between the parties.

2. The mother and step father are represented by counsel.  There is no appearance by or on behalf of the father.  He is a resident of, and I am informed located in Belarus. 

3. There are various translated documents before me; they are all translations from English into Russian or from Russian into English.  One such document is a memorandum of consent orders which is signed by the father. The applicants seek orders in the terms of the minute of consent order. 

4. I have heard viva voce evidence from the mother saying that she recognises the signature of the father having seen it during her relationship with the father upon him executing applications for birth certificates visas and the like. On the basis of this evidence I am satisfied that the signature is that of the father.

5. However, I also pay regard to a document which has been tendered and which I have directed be marked “Exhibit A”. The document is a letter from Language Advantage. It contains a signed declaration regarding the consent order, confirming that the father agrees to its terms.  The declaration contains an apostille from the Republic of Belarus completed and attached in accordance with the ‘Hague Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents’ (the “Apostille Convention”).  I was not provided with any submissions in respect of the effect of the apostille.  However, I shall briefly address the Apostille Convention to indicate the weight I give that apostille (and hence Exhibit A) in this case.

The Apostille Convention

1. The Apostille Convention facilitates the cross border use of public documents by simplifying the authentication of them.  In many countries, prior to implementation of the Apostille Convention, a lengthy and costly ‘legalisation’ process had to be undergone in order to establish the authenticity of a foreign public document (often known as ‘chain certification’). The Apostille Convention simplifies this process by reducing the formalities of legalisation to the simple delivery by the authorities of the State from where the document originates of a certificate in a prescribed form (entitled an ‘apostille’).  The effects of the apostille are limited to certifying the authenticity of the signature on the public document, the capacity in which the person signing the document has acted and, where appropriate, the identity of the stamp or seal which it bears (the Apostille Convention, Article 5).  The apostille does not authenticate the content of the underlying document itself.

2. The Apostille Convention entered into force on 24 January 1965.  It has attracted the highest number of ratifications and accessions of any Hague Convention (there are currently 94 Contracting States). The Convention is considered to lighten the task of the judges before whom foreign public documents are produced.  It is also of considerable assistance to any person who wishes to rely abroad on facts set out in a document emanating from the authorities of his own country (see the Succinct explanations in preparation of the Special Commission, Preliminary Document No 3 of August 2003 at

3. Both Belarus and Australia have acceded to the Apostille Convention and it is therefore in force between the countries.  Australia has incorporated the Convention into domestic law:  see the Foreign Evidence Act 1994 (Cth), s.37 et seq.

The Effect of the Apostille

1. First, I recognise the apostille contained within Exhibit A as one which is intended to fall within the purview of the Apostille Convention.  I am satisfied that the purpose of the apostille was to authenticate the signature of the notary, who in turn intended to authenticate the signature of the father.  Whether or not the apostille had that effect in this case depends, I think, on whether the Exhibit A is a public document within the meaning of the Convention.  The Convention sets down, at Article 1, a specific definition of what is regarded a “public document” for the purposes of the Convention:

   Article 1

   The present Convention shall apply to public documents which have been executed in the territory of one Contracting State and which have to be produced in the territory of another Contracting State.

   For the purposes of the present Convention, the following are deemed to be public documents:

   a)documents emanating from an authority or an official connected with the courts or tribunals of the State, including those emanating from a public prosecutor, a clerk of a court or a process-server ("huissier de justice");

   b)        administrative documents;

   c)        notarial acts;

   d)official certificates which are placed on documents signed by persons in their private capacity, such as official certificates recording the registration of a document or the fact that it was in existence on a certain date and official and notarial authentications of signatures.

   However, the present Convention shall not apply:

   a)        to documents executed by diplomatic or consular agents;

   b)to administrative documents dealing directly with commercial or customs operations.

2. In this case the document clearly falls within Article 1(c) of the Convention.  It is a document which has been notarised by the Head of the Public Notaries Office in Belarus; a Mr S.  I am therefore satisfied that the document is a “public document” such that it falls within the scope of the Apostille Convention. 

3. The effect which I must give to that apostille is determined by the domestic law provision, s.37 of the Foreign Evidence Act 1994 (Cth). Section 37 states as follows:

   (1) This section applies in relation to a foreign public document that has placed on it or annexed to it a certificate issued under the Convention. 

   (2)In a proceeding in any Australian court, and for the purposes of any person performing a function or exercising a power under an Australian law, the certificate is evidence of:

   (a)the authenticity of the signature on the foreign public document; and

   (b) the capacity in which the person signing the foreign public document has acted; and

   (c)where appropriate, the identity of the seal or stamp that the foreign public document bears.

   (3) Subject to section 39, an Australian court, or a person performing a function or exercising a power under an Australian law, must not require any formality other than the certificate in order to certify: 

   (a)the authenticity of the signature on the foreign public document; and

   (b)the capacity in which the person signing the foreign public document has acted; and

   (c)where appropriate, the identity of the seal or stamp that the foreign public document bears.

4. For the purposes of section 37 an ‘Australian Court’ includes any court exercising federal jurisdiction (s.3, Foreign Evidence Act 1994 (Cth)).

5. The case of Cabal and Another v United Mexican States and Another (No 3) [2000] FCA 1204 considered the application of this provision and stated (at paragraph 174):

   In the present case reliance was also placed in relation to some documents upon the provisions of the Foreign Evidence Act 1994 (Cth) and in particular s 37 which provides for the authentication of foreign public documents by the affixing of certificates (apostilles) issued in accordance with the requirements of the Hague Convention Abolishing the Requirement of Legalisation for Foreign Public Documents. By s 37(2) such certificates are evidence in Australian courts or for the purposes of any person performing a function or exercising power under an Australian law, of the authenticity of the signature on the foreign public document and the capacity in which the person signing the document has acted. Such certificates may also evidence the identity of the seal or stamp that the foreign public document bears.

6. I therefore consider that I am bound to recognise the authenticity of the signature of Mr S and his capacity to sign the document as a notary of Belarus.  I am not entitled to require any further formality to certify those facts. 

7. I am therefore satisfied that Mr S in his official capacity as notary both verified the identity of the father and witnessed his signature to the ‘declaration regarding consent order’ (Exhibit A). 

8. This therefore confirms my view that the signature on Exhibit A and the annexed documentation is that of the father and that he consents to the proposed orders.

9. I will therefore make orders in the terms of the minutes which are handed up, and the court will engross them.

10. I have not been addressed on the application of the primary and additional considerations such as they apply to the child and the operation of the proposed orders. However, these are uncontested proceedings. If the resolution proposed was not in the child’s best interests, I assume that the father would have put forward a case to that effect and not signed the minute which I am asked to consider.

11. There should be order and certainty about the parenting arrangements for the child. I am satisfied that the proposed orders are in the best interests of the child and I will make them accordingly.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett

Associate:     

Date:  27 October 2008