State Central Authority & Abdalle (No 2)

[2011] FamCA 827

FAMILY COURT OF AUSTRALIA

STATE CENTRAL AUTHORITY & ABDALLE (NO 2) [2011] FamCA 827

FAMILY LAW – adjournment – amendment of applicants name.

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

APPLICANT: State Central Authority

RESPONDENT: Ms Abdalle

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

FILE NUMBER: MLC 798 of 2011

DATE DELIVERED: 24 October 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 24 October 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT: Ms Fedele, Legal Services Department, Department of Human Services

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER No Appearance

Orders – Ex-Parte

IT IS ORDERED THAT:

1. The proceedings for the return of the children A born .. 2001, F born …, N born … 2005 and M born on … 2008 to the Country C pursuant to the Family Law (Child Abduction Convention) Regulations 1986 be adjourned to 9.00 am on 3 November 2011 before me.

2. For the avoidance of doubt, the provisions of the Order made on 3 February 2011 continue in full force and effect including paragraph 4 thereof which requires that the mother attend Court personally on the adjourned date and deliver the children to the Child Care Room on the 5^th Floor of this Registry of the Court by not later than 9.00 am.

3. The said order of 3 February 2011 be amended where necessary to refer to the respondent mother as Ms Abdalle born 1978 B born … 1974.

4. IT IS DIRECTED that a proper officer of the applicant State Central Authority ascertain, as soon as possible, the current address and name of the schools at which the three oldest children are enrolled as students and provide such information to the independent children’s lawyer.

5. The mother be and is hereby excused from bringing all children to Court on the adjourned date if, but only if, a proper officer of the applicant State Central Authority has had an opportunity to sight, meet and talk with each of the children with whom the application is concerned prior to the adjourned date and the applicant State Central Authority consents in writing to the children not being brought to Court.

6. The mother forthwith file and serve a Notice of Address for Service.

7. The solicitors for the applicant State Central Authority advise the independent children’s lawyer this afternoon of the outcome of this hearing.

8. There be liberty to apply urgently to vary or set aside this Order.

9. The letter dated 24 October 2011 from the solicitors for the applicant State Central Authority be marked Exhibit “A” and remain on the Court file.

10. The reasons for decision this day be transcribed and, when settled, a copy be placed on the Court file and made available to the parties.

IT IS NOTED that publication of this judgment under the pseudonym State Central Authority & Abdalle is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 798 of 2011

State Central Authority

Applicant

And

Ms Abdalle

Respondent

REASONS FOR JUDGMENT

ex-parte

1. This matter comes before me pursuant to a liberty to apply which has been exercised by the applicant, State Central Authority, upon it being notified by the Commonwealth Central Authority of certain information which has come into its hands concerning the respondent mother and the four children who are the subject of the application pursuant to the Family Law (Child Abduction Convention) Regulations1986 (Cth).

2. The children are:  A, born … 2001 (10 years old); F, born … 2003 (8 years old);  N, born … 2005 (6 years old);  and M, born … 2008 (3 years old). 

3. It is alleged that the children were wrongfully removed from the Country C by the respondent on or before 24 August 2010.  The application which is currently before the Court was filed on 1 February 2011 at the behest of the requesting parent, who appears to have signed the relevant application to the Central Authority for Country C on 15 September 2010. 

4. The State Central Authority now seeks a further court date because it believes it now has sufficient information to effect service of all relevant documents upon the respondent mother.  That will be the application filed on 1 February 2008 and the Orders made by this Court since that time, together with the various affidavits of attempted service and the notice of address for service of the independent children's lawyer, who represents the children’s interests in these proceedings.

5. To recap briefly, the proceedings were first before me on 3 February 2011, at which time I made the usual orders securing or attempting to secure the whereabouts of the children pending a determination of the matter.  The matter was next before me on 11 February 2011, when I made orders for various Government departments and instrumentalities to search their records for details which may lead to the whereabouts of the children.  Then the matter was before me on 18 March 2011, when I made further information orders to lead to location of the children and reserved liberty to apply to all parties to the proceedings.

6. Today, by correspondence, the Court is informed by the State Central Authority as follows:-

   Information obtained from the Commonwealth Central Authority

   Department of Immigration and Citizenship has informed the Commonwealth Central Authority that the Mother Respondent and children were recorded on 9 March 2011 as living with the mother’s brother at [D Street, Suburb G, VIC].

   The Department of Immigration also informed the Commonwealth Central Authority that the Mother is in the process of applying for [Country H] Citizenship for her and the children.  Inquiries were made with the [Country H] authorities in order to ascertain whether the Mother and the children had entered [Country H] but they had no record of the mother and the children doing so.

   The Department of Immigration provided the Commonwealth Central Authority with two variations of the Respondent Mother’s name and Date of Birth.  [Ms Abdalle] (DOB …1978) AKA [Ms B] (DOB …1974).

   Attempts to serve the Mother

   Service was attempted on the Respondent Mother at her sister’s address of: [I Street, Suburb J], 3031 on 22/3/11, 23/3/11, 24/3/11, 25/3/11, 26/3/11, 27/3/11, 28/3/11 and 29/3/11.  Service attempts were unsuccessful.

   Orders being sought by the State Central Authority

   The State Central Authority will be seeking leave to serve the Mother at the [Suburb G] address listed above and for the matter to be adjourned for one week.

7. It is appropriate that I amend the original Order, which refers to the mother as Ms Abdalle, born … 1978, to refer to her as “also known as [Ms B], born … 1974”, although the solicitor for the State Central Authority says that it is confident that the details in the Order are correct.  I understand that the appropriate authorities have been alerted as to the possible alias under which the mother is travelling. 

8. The original Order required the mother to bring the children to Court on the first return date.  I still require that to occur, unless, prior to that date, a representative of the Department of Human Services has actually sighted and met each one of the children.  It seems to me that that could be done at the schools of the older children and by arrangement with the mother for the younger child, M, to be assessed by the Department.  This is not an assessment arising out of any protective concern for the children in the care of the mother, but merely to sight them and be able to positively identify them as the children with whom this application is concerned.  If an officer of DHS has not met each child by the adjourned date, the mother must bring all four children to the registry on the return date.  I will ensure that there are sufficient places in the child minding room, or that some other arrangement is made for the children to be cared for during the Court hearing, which I anticipate would take no longer than an hour or so in the morning.  It will be listed at 9.00 am. 

9. I note that the mother is supposed to be residing at Suburb G.  Suburb G is an outer suburb of Melbourne.  I estimate it would take some 45 minutes by train to get to Melbourne.  This registry of the Court is located on top of a train station, so I do not anticipate that the journey would be arduous for the children and the mother, even at that time of day. 

10. Finally, when the matter was first before me, I noticed that the application recited the fact that the requesting parent had insufficient funds to pay for the return of the children to the Country C in the event that the application was successful and the children were required to return.  When the proceedings were last before me on 18 March 2011, nothing had changed in this respect.  However, I am informed by Ms Fedele, solicitor for the State Central Authority, that the father now has the wherewithal to pay for the repatriation of the children to the Country C if that is what is ordered 

11. I will adjourn the proceedings to Thursday 3 November 2011 at 9.00 am.  It is necessary for the mother and the children to be at Court at that time.  It would be preferable for the mother to obtain legal representation if she intends to do so.  It is certainly necessary for the independent children's lawyer to appear.  I note that was Ms Lonergan of Victoria Legal Aid, and that she has since left her employment.  So it is expected that another solicitor will take over this matter.  It should not matter, because, of course, Ms Lonergan had not met the children.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 24 October 2011.

Associate: 

Date:  26 October 2011