State Central Authority and Brume and Anor

[2010] FamCA 1276

FAMILY COURT OF AUSTRALIA

STATE CENTRAL AUTHORITY & BRUME AND ANOR [2010] FamCA 1276

FAMILY LAW – HAGUE CONVENTION – application for return of child to the Netherlands – application for return withdrawn – parenting orders made

APPLICANT: State Central Authority

1^st RESPONDENT: Ms Brume

2nd RESPONDENT:	Mr C
INDEPENDENT CHILDREN’S LAWYER:	Mr M Finn

FILE NUMBER: MLC 434 of 2010

DATE DELIVERED: 6 September 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 6 September 2010

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Noble
Victoria Legal Aid

SOLICITOR FOR THE RESPONDENT:	Ms Billeam, Duty Solicitor
THE RESPONDENT (MR C)	In Person

INDEPENDENT CHILDREN’S LAWYER

Mr M Finn

Marshalls & Dent

Orders

IN THE MATTER OF STATE CENTRAL AUTHORITY & BRUME– MLC434/2010

IT IS ORDERED:

1.That leave is granted to the Applicant State Central Authority to withdraw the application filed 18 January 2010.

2.That all interim orders which provided for the safekeeping of the child N born … 2008 be discharged.

3.That without limiting the generality of the foregoing order the passport of the child N born … 2008 currently held for safekeeping in this Registry of the Court be returned to the mother Ms Brume.

4.That this matter be removed from the docket of the Honourable Justice Bennett.

5.That the appointment of the independent children’s lawyer be and is hereby discharged.

IT IS REQUESTED:

6.That the Australia Federal Police remove the name of the child N born … 2008 from the Airport Watch List at all points of international arrivals and departures in Australia.

IN THE MATTER OF BRUME & COMBE – MLC434 of 2010

1. That the Mother and Father shall have equal shared parental responsibility for the child N born … 2008

2. That for the purpose of interpretation of these orders in the Netherlands, the term shared parental responsibility shall be deemed to be “shared rights of custody”

3. That the child shall live with the Mother.

4. (I) The Father shall spend time with the child in the Netherlands at times to be agreed between the parties, as follows:

   (a)In 2010:   during a 12 week period between August/September and October/ November;

   (b)In 2011:   during a 6-8 week period between May and September;

   (c)In 2012:   during an 8-12 week period between May and September.

   (d)From 2014 and each alternate year thereafter, subject to (e) herein, for a period of up to 12 weeks between May and September,

   (e)In 2016 the parties shall review the frequency of and the arrangements for the child’s travel out of the Commonwealth of Australia to spend time with her father and the parties may reduce to writing any agreement reached to a variation of these orders and they shall be duly registered or recognised in both the Australian and Dutch jurisdictions for the purpose of enforceability.

   (f)such other times as the parties may agree.

   (II)(a)  The Father’s time with the child will progress to unsupervised overnight time, and block time with her, consistent with her development. It is intended that she shall eventually spend block time with the father and her half-sister J for a period of up to 3 weeks per year.

   (b)  The child’s time spent with her father in the Netherlands or Australia, subject to her developmental needs, shall be not less than 50 per cent of her waking time.

5. The Father may spend face to face time with the child in Australia as agreed between the parties.

6. Each party shall give the other party not less than 15 days’ notice of their intention to travel for the purpose of these orders and shall provide details of the flights booked at that time.

7. The parties agree that any supervision of the child’s time with the Father will be subject to her developmental stages and her familiarity with her Father, and shall be as agreed between the parties.

8. a)     During any period that the child N is residing in the Commonwealth of Australia and the Father is residing out of the Commonwealth of Australia, the Mother shall ensure that the child communicates with her Father by Skype or other webcam communication not less than once per week, by email at least once per week, and by MSN three times per week on days and times to be agreed between the parties.

   b)The Mother further, shall, during such periods, establish and maintain a “blog” which can be accessed by the Father and such other persons as the parents may agree may have access to it  and the Mother shall maintain the blog by posting and/or assisting  the child N to post weekly entries including photographs, outlining events and achievements in that week.

9. The Father shall register this order or have it recognised in the Netherlands within 21 days, for the purpose of enforceability and at his expense.

10. The Father shall do all things necessary to permit the Mother to apply for permanent residency in Australia for the child N and the cost of the same shall be borne by the Mother. 

11. Provided that there is compliance with the terms of these orders in so far as they relate to the scheduled visitation times for the Father with the child in the Netherlands, the Father shall ensure that there is no restriction registered with the Dutch authorities which prohibits the child or the Mother from leaving the jurisdiction.

12. The parties agree that in the event they are unable to resolve any parenting issue the party raising the issue shall be at liberty to initiate mediation through the telephone mediation service provided by the Australian government, if the Mother is residing in Australia, or through a Dutch mediation service, if the Mother is residing in the Netherlands, the cost of the mediation ( if any) shall be shared equally and both parties shall in good faith attempt to resolve the issue in dispute through mediation.

IT IS ORDERED:

1. That pursuant to Sections 65DA(2) and 62B the particulars and 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 BY THE COURT THAT:

A.It is the intention of the parties that:

a)whilst the child is an infant she shall travel to the Netherlands, accompanied by her Mother and her half-sister J but this arrangement shall be reviewed as the need may arise, and in any event, by no later than 2016.

b)the Mother shall within 14 days of signing these consent orders apply to the Child Support  Agency in Australia to withdraw her request for child support assessment for the child  and the father will pay child support for the child  at the current rate of E75 per month, such amount to be reviewed annually at the end of each calendar year, on the basis of the Father’s then current income, and the principles relating to child support in the  Netherlands;

c)the parties accept liability for the joint debt of E30,000 to the F Council in the proportion 75 per cent Father: 25 per cent Mother such debt to be repaid by each party within the time frame allowed by the F Council.

d)each party shall assist as far as practicable with facilitating the residential arrangements for the other parent when that parent is travelling to facilitate the time the child spends with the Father

e)the Father intends to travel to Australia not less than once per year to spend time with the child

B.That for the purpose of the first period of time provided for in paragraph 4(I)(a) of this Order the mother and children will embark on flights on Sunday 12 September 2010, being Flights … and … bound for the Netherlands.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC434 of 2010

State Central Authority

Applicant

And

Ms Brume

1^st Respondent

And

Mr C
2^nd Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. In the matter of State Central Authority & Brume and the matter of Brume & Combe, I have been asked today to make orders which put an end to the Hague Convention application which was filed on 18 January 2010, by the withdrawal of it by the applicant State Central Authority, and to make orders pursuant to Part VII of the Act as between the mother, Ms Brume, and the father of B, born in 2008, who is Mr C.

2. I am satisfied, in all of the circumstances that the parenting orders are in the child’s best interests.  Mr J has had explained to him the effect of the orders, and I note that the first period of time which the child will now spend in the Netherlands will commence this Sunday. 

3. I express my appreciation to all concerned with all the proceedings and wish them well in the future.

4. These very short reasons belie the fact that there have been two defended hearings in which decisions were delivered, an appeal which was abandoned, a family report and numerous mentions of the matter.  There was also communications through the International Hague Network of Judges.  All is well that ends well.

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered 6 September 2010.

Associate: 

Date:  2 February 2011