FAMILY COURT OF AUSTRALIA
| STATE CENTRAL AUTHORITY & ABDALLE | [2012] FamCA 1151 |
| FAMILY LAW — PARENTAL CHILD ABDUCTION — Conceded wrongful removal from Country F — Difficulties with interpretation of evidence from Country Q resulting in procedural fairness issues — Criticism of practitioners for not preparing witnesses to give evidence — Cost of video link for cross examination prohibitive for the Court and not sustainable — Request for Central Authority to make alternative provision for cross examination of remote witnesses in future cases — Adversarial hearing — Requirement for clear and cogent evidence of grave risk of harm to which children will allegedly be exposed by return to Country F — Insufficient evidence of risk of harm — Insufficient evidence upon which to find children object to return — Conditions imposed on return — Return ordered — Discretion to allow children to remain in Australia not applicable but discussed. |
| Convention on Civil Aspects of International Child Abduction, opened for signature 25 October 1980, Hague XXVIII (entered into force 1 December 1983) Evidence Act 1995 (Cth) Family Law Act 1975 (Cth) Family Law (Child Abduction Convention) Regulations 1986 (Cth) |
| C & C (Minor: Abduction: Rights of Custody Abroad [1989] 2 All ER 465; 1 WLR Director-General, Department of Families & RSP (2003) FLC 93-152. |
| APPLICANT: | State Central Authority |
| RESPONDENT: | Ms Abdalle |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Caroline Smith |
| FILE NUMBER: | MLC | 798 | of | 2011 |
| DATE DELIVERED: | 16 March 2012 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Bennett J |
| HEARING DATE: | 27, 28 and 29 February 2012 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms J Greenham |
| SOLICITOR FOR THE APPLICANT: | Department of Human Services, Legal Services Branch |
| COUNSEL FOR THE RESPONDENT: | Dr J Walsh of Brannagh |
| SOLICITOR FOR THE RESPONDENT: | Starnet Legal |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms S Dowler |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Victoria Legal Aid |
ORDERS
IT IS ORDERED THAT:
1.The children B born … June 2001, C born … March 2003, D born … June 2005 and E born … November 2008 (‘the children’) be returned to Country F pursuant to the Family Law (Child Abduction Convention) Regulations 1989 within 30 days of compliance by the father with paragraph 2.
2.The children’s return to Country F pursuant to paragraph 1 of this order is conditional upon:
(a) the requesting father paying the sum of 8000 pounds sterling in full (“the monies”) by not later than 12 noon on 18 May…
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- State Central Authority & Abdalle [2012] FamCA 1151
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- [2012] FamCA 1151
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CaseChat Overview and Summary
The primary legal issue before the Court was whether the children should be returned to Country F pursuant to the Family Law (Child Abduction Convention) Regulations 1989. This involved considering the mother's objections and the conditions under which any return order should be made, particularly in relation to financial provisions and undertakings to be provided by the father.
Bennett J ordered the children's return to Country F, subject to specific conditions. These conditions included the father paying a sum of 8000 pounds sterling to the mother's solicitors to cover airfares for the mother and children to travel to Country F, with any remainder to be held on trust for the mother. Furthermore, the father was required to sign an irrevocable consent to orders being made against him by a competent court in Country F, which included provisions for the children remaining in the mother's care, prohibitions against the father molesting or interfering with the mother or children, and a bar on the father pursuing criminal proceedings against the mother related to the children's removal. The Court also made detailed provisions regarding the notification of flight details, the handling of passports, and the provision of support services for the mother and children upon their arrival in Country F. The application by the State Central Authority and the mother's response were otherwise dismissed.
Orders
Orders of the court
IT IS ORDERED THAT:
1. The children B born … June 2001, C born … March 2003, D born … June 2005 and E born … November 2008 (‘the children’) be returned to Country F pursuant to the Family Law (Child Abduction Convention) Regulations 1989 within 30 days of compliance by the father with paragraph 2.
2. The children’s return to Country F pursuant to paragraph 1 of this order is conditional upon:
(a) the requesting father paying the sum of 8000 pounds sterling in full (“the monies”) by not later than 12 noon on 18 May 2012 to the mother’s solicitors, Starnet Legal whose trust account details are …, the monies to be held on trust and be paid out by Starnet Legal as follows;
i. to pay the costs of one way airfares for the mother and children to travel from Australia to Country F, the funds to be paid directly to the travel agency or airline; and
ii. the remainder to be paid to the mother at the direction of the State Central Authority to her nominated bank account as soon as practicable after the mother and children enter Country F on the flights referred to in paragraph 2(a)(i) above; and
iii. as may otherwise ordered by the Court.
(b) the requesting father signing an irrevocable consent to orders being made against him by a Court of competent jurisdiction in Country F, such consent orders to be drawn up by the mother or her representatives and to be submitted to the father within 14 days of the date of these Orders and to be on the following terms:
i. the children remain in the care of the mother pending further orders of a Court;
ii. the father must not:
a) molest harass, threaten, abuse or interfere with the mother or the children;
b) communicate with the mother or children orally, in writing, by telephone or any other means, except through solicitors or in accordance with an Order of a Court;
c) knowingly come within 250 yards of the mother’s residence, her place of work or the children’s school or day care, except if permitted pursuant to an Order of a Court; and
d) pursue any form of criminal proceedings or sanctions against the mother pursuant to the Child Abduction Act 1984 (UK) or under common law in relation to the removal of the children from Country F either in Australia or Country F.; and
iii. the mother being excused from disclosing her residential address to the father until further Order of a Court.
3. Within 14 days the mother provide to the applicant State Central Authority minutes of the proposed consent order referred to in the preceding paragraph that she seeks be made in Country F.
4. Paragraph 14 of the Orders made on 3 February 2011 and paragraph 8 of the Orders made on 7 November 2011 be discharged and that the applicant State Central Authority is entitled to collect any and all passports that have been lodged with this Registry of the Court and to hold them safely pending compliance with paragraphs 6 and 8 of this Order.
5. Immediately prior to the departure of the children from Australia, paragraphs 9, 10, 11, 12 and 13 of the Orders made on 3 February 2011, paragraph 4 of the Orders made on 3 November 2011 and paragraph 4 of the Orders made on 7 November 2011 be and are hereby discharged.
6. The mother’s solicitors notify the applicant State Central Authority and the independent children’s lawyer of the flight details of the mother and the children no less than fourteen days prior to the intended date of travel, in writing, supported by photocopy e-tickets or itinerary.
7. For the purpose of giving effect to the return provided for in paragraph 1 of this Order:-
(a) The respondent mother be at liberty to accompany the children on the children’s return to Country F;
(b) The respondent mother attend with the children at Tullamarine Airport in sufficient time to have baggage check in procedures completed, and to attend at the customs entrance for departing passengers, by not later than four hours prior to departure;
(c) Cooperate with the sequence of events provided for in paragraph 9 of this Order.
(d) Until the children arrive in M City the respondent mother not cause suffer or permit the children to be removed from the transit area of a terminal during any period of disembarkation in Hong Kong or any unscheduled port.
8. An officer (or officers) of the Department of Human Services in Victoria:-
(a) attend at the lowest number check in counter designated for the flight to Country F referred to in paragraph 2(a)(1) of this Order;
(b) hand the children’s passports to the mother so that she may complete the check in procedure;
(c) immediately thereafter, accompany the mother and the children to the entrance of the restricted customs area and observe them enter the area.
9. The State Central Authority provide a copy of these Orders and the flight details of the mother and children no less than seven days prior to the intended date of travel to the Marshal of the Family Court of Australia, the Commissioner of the Federal Police and the Secretary of the Commonwealth Department of Foreign Affairs and Trade.
10. The Manager of Child Dispute Services of this Registry of the Court advise the mother and each other party to the proceedings as soon as practicable of the name and address of support services which may be of immediate assistance to the mother and children upon their return to Country F and, for that purpose, obtain information from various agencies including, but not limited to, the following:-
(a) International Social Service:-
i. in Melbourne; and
ii. by Mr G, CEO, Country F Branch,
(b) by Ms H, Acting Director, J Centre.
11. For the purpose of paragraph 2 of this Order:-
(a) The applicant State Central Authority advise and keep all other parties to the proceedings advised of compliance by the father with his payment of the monies;
(b) The solicitors for the mother notify the mother and each other party to the proceedings when the monies have been received into their trust account;
(c) Within 7 days of compliance by the solicitors with sub-paragraph 3(b) of this Order, the mother may notify the solicitors and each other party to the proceeding, in writing, if she wishes to convert the one way tickets to return tickets on the basis that she is solely responsible for, and prior to the purchase of any such ticket will pay for, the difference between the return tickets and the one way tickets.
12. For the purpose of sub-paragraph 2(a)(i) of this Order:-
(a) The family fly Qantas if practicable and cost effective;
(b) The solicitors obtain the prior written approval of the independent children’s lawyer to the fare required for the purchase of the tickets;
(c) The mother notify each other party to the proceedings of the name and account details of the bank into which she wants the balance of the monies to be transferred so that those funds are accessible to her, for the benefit of herself and the children, after their arrival in Country F.
(d) The mother may request in writing that return tickets be booked which provide for a return journey for herself and the children to Australia not sooner than nine months after the forward journey, with the increase in fares being at her sole expense and providing that the amount of the extra expense (over and above the cost of a one way ticket) be paid to the solicitors by, or on behalf, of the mother prior to the purchase of the ticket; and
(e) In the event of disagreement and in order to avoid delay, I reserve to all parties liberty to make application on short notice in relation to the purchase of airline tickets and to contact my associate … for the purpose of securing an urgent listing of the matter.
13. If for any reason the solicitors for the mother decline or cannot hold the monies (or any part thereof) on trust as is provided for in this Order, the parties do all acts and things necessary to transfer the monies to the independent children’s lawyer to be dealt by her with in accordance with this Order.
14. The applicant State Central Authority be responsible for service of a copy of this Order by electronic means on the proper officer of the carrier on which the flights of the children are booked and IT IS REQUESTED that the proper officer of the said carrier inform the applicant State Central Authority, in response to a request for information, that the children and mother have boarded the flight which is the final leg/sector of the journey to Country F.
15. I reserve liberty to the parties to apply to vary the orders in relation to the safe custody of the children and travel documents pending the return of the children to Country F.
16. Subject to the mother confirming in writing to my Associate by not later than 12.00 noon on 22 March 2012 that she wants the reasons for decision herein translated to her, IT IS DIRECTED that the Registry Manager of this Registry of the Court arrange for an interpreter to attend Court on 27 March 2012 for the day for the purpose of translating the reasons for decision to the mother.
17. Liberty is reserved to the parties to apply in relation to the implementation of this order.
18. The application of the State Central Authority filed 1 February 2011 and the response of the mother filed on 28 November 2011 be otherwise dismissed.
19. The order for the appointment of the Independent Children’s Lawyer is hereby discharged as and from 14 days after the departure of the children from Australia.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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