Secretary of the Attorney-General's Department and McDonald

[2013] FamCA 662

FAMILY COURT OF AUSTRALIA

SECRETARY OF THE ATTORNEY-GENERAL'S DEPARTMENT & MCDONALD [2013] FamCA 662

FAMILY LAW – CHILDREN – Hague Convention – Notice of Discontinuance by the Applicant  

Family Law Act 1975 (Cth)
Family Law (Child Abduction Convention) Regulations 1986 (Cth)

APPLICANT: Secretary of the Attorney-General's Department

RESPONDENT: Ms McDonald

FILE NUMBER: BRC 7335 of 2012

DATE DELIVERED: 5 September 2013

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 26 October 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Australian Government Solicitor

SOLICITOR FOR THE RESPONDENT: Legal Aid NSW

Orders

IT IS ORDERED THAT

1. The application in Form 2 filed by the Secretary of the Attorney-General’s Department on 13 August 2012 be dismissed.

2. The matter be removed from the pending cases list.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Secretary of the Attorney-General's Department & McDonald 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 BRISBANE

FILE NUMBER: BRC 7335 of 2012

Secretary of the Attorney-General's Department

Applicant

And

Ms McDonald

Respondent

REASONS FOR JUDGMENT

1. On 13 August 2012, the Secretary of the Attorney-General’s Department (“the Department”), acting as the Commonwealth Central Authority, filed an application in Form 2 seeking final orders expressed to be pursuant to regulation 25 of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”) for Mr V to have “access” to his daughter, S, born in 2004 who resides in Belgium with her mother, Ms McDonald. The Mother filed a response to the application on 4 October 2012.

2. The relevant history of the matter is outlined in my reasons for judgment delivered on 22 January 2013 in which I determined that the justiciable controversy in this matter attracted the jurisdiction under Part VII of the Family Law Act 1975 (Cth) (“the Act”) and exercise of the powers under Part VII to make parenting orders was necessary for the resolution of that controversy. I made Orders that the Department’s application be adjourned pending the filing of an application for parenting orders under Part VII of the Act and that upon the filing of a parenting orders application, the application in Form 2 be stayed pending the hearing and determination or finalisation of the parenting orders application.

3. In the event, no parenting orders application has been filed. In April 2013, the Court sought clarification from the parties as to their intention to file a parenting orders application in this matter. On 17 May 2013, Ms B, a Project Officer employed by the Department filed an affidavit deposing that correspondence had been sent by the Department to the Belgian Central Authority outlining the Department’s intention not to pursue the application further; seeking information as to whether Mr V was intending to file a Part VII application; and advising that the Department intended to finalise the application by filing a Notice of Discontinuance. No response was received by the Belgian Central Authority at this time.

4. On 11 July 2013, Ms B filed a further affidavit outlining correspondence with the Belgian Central Authority. Ms A, the attaché of the Belgian Central Authority sent an email on 5 June 2013 asking that the Australian Central Authority “keep the proceedings open and stayed” until the usual contact for the matter, Ms C returned from leave. The Department advised Ms A that they would wait until 28 June 2013 for a response from the Belgian Central Authority.

5. On 3 July 2013, Ms B sent an email to Ms A, and to the general email addresses of the Belgian Central Authority, advising that given a response had not been received, the Australian Central Authority would be filing a Notice of Discontinuance on 11 July 2013. On 9 July 2013, Ms A replied, noting the intentions of the Australian Central Authority and asking whether the filing of the Notice of Discontinuance would have any negative impact on a future Part VII application. Ms B replied to this email clarifying that a Notice of Discontinuance would be filed on 11 July 2013 subject to any further response from the Belgian Central Authority. As at 11 July 2013, Ms B had not received any further correspondence from the Belgian Central Authority in respect of these proceedings.

6. On 11 July 2013, the Department filed a Notice of Discontinuance of the application filed on 13 August 2012. Ms B deposes in her affidavit filed 11 July 2013 that she believes that:

   ·the Belgian Central Authority has reasonable notice of the intention to file this Notice of Discontinuance;

   ·the Belgian Central Authority has had reasonable opportunity to communicate the Australian Central Authority’s intention to file a Notice of Discontinuance to Mr V; and

   ·the Australian Central Authority does not, as at the date of Ms B’s affidavit, know whether or not Mr V intends to file a Part VII application.

7. Ms B deposes in her affidavit filed 11 July 2013 that the Australian Central Authority does not intend to pursue the application further in these circumstances and that, in circumstances where the temporary stay contemplated by my Orders made on 22 January 2013 would operate indefinitely pending Mr V filing a Part VII application, the Australian Central Authority believes it is therefore appropriate that the matter be brought to an end by the filing a Notice of Discontinuance.

8. Ms B also attaches to her affidavit a copy of an email dated 3 July 2013 sent by Ms D of Australian Government Solicitor to Ms E of Legal Aid, the solicitor for the Respondent advising that the Australian Central Authority intended to file a Notice of Discontinuance in these proceedings on 11 July 2013.

9. In her Response filed 4 October 2012, the Mother had submitted that an application under the Regulations was an inappropriate forum and the appropriate forum is under Part VII of the Act. As such the Mother sought that the application be dismissed.

10. In these circumstances, as a matter of completeness, I order that the application filed by the Department on 13 August 2012 be dismissed and the matter be removed from the pending cases list.

11. I therefore make the Orders set out at the commencement of these reasons.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 5 September 2013.

Associate: 

Date:  5 September 2013