State Central Authority and Bacman and Anor

[2019] FamCA 692

FAMILY COURT OF AUSTRALIA

STATE CENTRAL AUTHORITY & BACMAN AND ANOR [2019] FamCA 692

FAMILY LAW – CHILD ABDUCTION – Oral application to vary return order under the 1980 Hague Convention to postpone return until registration of the return order – application refused.

APPLICANT: State Central Authority

RESPONDENT: Ms Bacman

RESPONDENT: Mr Bergan

INDEPENDENT CHILDREN’S LAWYER: Ms Clarke

FILE NUMBER: MLC 14920 of 2018

DATE DELIVERED: 19 September 2019

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 19 September 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Reiseger

SOLICITOR FOR THE APPLICANT: State Central Authority

COUNSEL FOR THE RESPONDENT: Ms Li Rosi

SOLICITOR FOR THE RESPONDENT: KCL Law

COUNSEL FOR INDEPENDENT CHILDREN’S LAWYER:

COUNSEL FOR THE REQUESTING PARENT / FATHER: No Appearance

SOLICITOR FOR THE REQUESTING PARENT / FATHER:

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Clark Family Lawyers

Orders

1. There be leave to the Respondent Mother to make an oral application for a variation of paragraph 5 of the Order made on 16 August 2019 for the return to Norway of the child X born … 2017 (“the child”) on 22 or 23 September 2019 so that the child is not required to leave Australia until the Order made on 16 August 2019 is registered in Norway pursuant to the Hague Convention of 1996 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (“the 1996 Convention”).

2. The oral application of the mother be and is hereby dismissed.

3. My reasons for decision this day be transcribed and when settled placed on the Court file and a copy provided to the parties.

IT IS DIRECTED:

1. That the email to my Chambers and the letter from the practitioner for the mother dated 18 September 2019 be marked Exhibit “A” and remain on the Court file.

AND IT IS NOTED that the father has not appeared by telephone this day as the mention of the matter was scheduled urgently and the father may not have seen the email notification of the mention as it is in the middle of the night in Norway at this time.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym State Central Authority & Bacman and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 14920 of 2018

STATE CENTRAL AUTHORITY

Applicant

And

MS BACMAN

Respondent

And

MR BERGAN
Requesting Parent/Father

And

INDEPENDENT CHILDREN’S LAWYER

EX TEMPORE REASONS FOR JUDGMENT

1. This matter has been listed on the urgent request of the respondent mother.  I give leave to the mother to make an oral application for a variation of paragraph 5 of the order made on 6 August 2019 for the return to Norway of the child on 22 or 23 September 2019 so that the child is not required to leave until the orders made on 16 August 2019 are registered pursuant to the 1996 Convention.  I dismiss the application and publish my brief reasons for so doing. 

2. This matter comes before the court on the last working day on which I am available before the mother is due to fly back to Norway pursuant to a return order made under the Family Law (Child Abduction Convention) Regulations 1986 on 16 August 2019.  The child is X born in 2017. 

3. The mother was the respondent to the Hague return application and was represented by counsel when the return order was made.  The father was in Court and was joined as a party to the proceedings for the purpose of being bound by giving effect to the conditions of return. The child’s interests were represented by an Independent Children’s Lawyer, also present. 

4. In broad compass, pursuant to paragraph 5 of the Order, the child is to be returned departing Melbourne on 22 or 23 September 2019 and the mother is entitled to travel with the child.  There is extensive provision for safe harbour arrangements including specification of when the father will see the child in Norway, various restraints and surrendering of the passport so that the child cannot be removed without permission.

5. There is provision in paragraph 29 of the Order for the parents do all acts and things necessary to have this order rendered enforceable in Norway pursuant to the 1996 Convention and for that purpose or request there be direct judicial communication to facilitate a declaration of enforceability or registration of an order for the purpose of enforcement. 

6. Today, my Chambers received an email from the practitioners for the mother saying that the Order had not been rendered enforceable in Norway. It is asserted that a delay had been encountered because the Norwegian Directorate for Children, Youth and Family Affairs in Oslo would not process the declaration of enforcement or registration until it had seen an original certificate of enforceability from this Court.  The wife’s solicitor tells me that she requested a certificate of enforceability on the 8 September 2019.

   RECORDED:  NOT TRANSCRIBED

It was received on 13 September 2019.  The wife’s solicitor says that she immediately dispatched the certificate to Norway by courier.  It was also sent by email but apparently the Norwegian Directorate will not accept an electronic copy. 

1. The father does not appear today.  He is the requesting parent, he has been joined as a party in his own right.  It is in the middle of the night in Norway and whilst he has been notified by email he is probably in practical terms unaware of what is going on. Accordingly, this is relief sought ex-parte the husband.  

2. It is unfortunate that the Order has not been accepted for enforcement at this point, although there is nothing raised by anyone to indicate that it will not be.  There has been direct judicial communication in that regard and the respondent mother’s lawyers are in constant contact with the responsible authority in Norway.  The Order is otherwise recognised in Norway pursuant to Article 23 of the 1996 Convention. 

3. If the mother leaves Melbourne as planned at some stage this weekend she does not anticipate arriving with the child in Norway until Monday, 23 September.  Paragraph 6(g) of the Order provides that the mother will keep her Norwegian legal practitioner and the Central Authority in Norway informed of the residential address of the child and any changes thereto but no-one is to disclose those details to the father.  Therefore, in spite of the mother being back in Norway, the father will not know her whereabouts. 

4. The first occasion on which the father would see the child is pursuant to paragraph 6(b) of the Order is not earlier than seven days after the mother’s return to Norway on either a Saturday or a Sunday.  On my calculation, that would mean that the seven days would be 30 September and the time would not, therefore, run – not take place until 5 or 6 October 2019 and, as I have said, in the meantime, the father would not know the whereabouts of the child. 

5. The parties concede that regulation 19A of the Regulations does not apply to an application vary a return order, merely to discharge an order. 

6. The relief sought pertains to how the return order is implemented.  It is discretionary relief.  I have the power to vary the order in circumstances where I consider it necessary to do so and in order to give effect to the Convention. 

7. In this case, I am not satisfied that any variation is necessary in order to give effect to the Convention. 

8. I take into account and give considerable weight to the fact that the parties negotiated a comprehensive safe harbour situation which would ease the return of the child and the mother back into Norway.  I regard a safe return as a stated purpose of the 1980 Convention, as evinced in the preamble to the Convention, that the harmful consequences of international parental child abduction should be minimised and ameliorated for the child to the greatest extent possible.  However, I am not satisfied that the date for return is an order which puts the child at any risk because there is a considerable time period before the father is to see the child. 

9. The mother raises the potentiality of the father attending at the airport when her flight arrives.  The mother will be armed with an order that should be recognised in Norway which clearly specifies that the child is to live with her.  If the father acts contrary to what is agreed, he should answer to the Norwegian courts.

10. In the circumstances of the case, I will not accede to the oral application to vary the Order.  The Order stands and the mother should board the plane with the child as scheduled.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 19 September 2019.

Associate:

Date:  26 September 2019