State Central Authority and Daker

Case [2008] FamCA 1271

FAMILY COURT OF AUSTRALIA

STATE CENTRAL AUTHORITY & DAKER [2008] FamCA 1271
FAMILY LAW – CHILD ABDUCTION – Hague abduction matter – reg 16(3)(b) grave risk exception not made out – conditions to return – child returned to Israel
APPLICANT: State Central Authority
RESPONDENT: Ms Daker
FILE NUMBER: MLC 6698 of 2008
DATE DELIVERED: 15 DECEMBER 2008
PLACE DELIVERED: Melbourne
PLACE HEARD: Melbourne
JUDGMENT OF: BENNETT J
HEARING DATE: 10 NOVEMBER 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: MS GREENHAM
SOLICITOR FOR THE APPLICANT: STATE CENTRAL AUTHORITY SECRETARY TO THE DEPARTMENT OF HUMAN SERVICES
COUNSEL FOR THE RESPONDENT: MR DUFFY
SOLICITOR FOR THE RESPONDENT: POWELL BAYLISS LAWYERS

Orders

IT IS ORDERED:

  1. That the child N born … April 2004 be returned to Israel pursuant to the Family Law (Child Abduction Convention) Regulations 1986.

  2. That the State Central Authority and the respondent mother forthwith make such arrangements as are necessary for the child to return to Israel, in the company of the mother, within 30 days or such other date as the applicant State Central Authority may agree upon.

  3. That the Registrar or Proper Officer of the Family Court of Australia (Melbourne Registry) hand over the passport of the child to the legal representative of the State Central Authority upon the presentation of these orders to facilitate his return to Israel in accordance with this Order.

  4. That the applicant State Central Authority deliver the child’s passport to the mother within a reasonable time prior to the date on which it is arranged that the mother and child depart Australia for Israel.

  5. That upon presentation of the child at Melbourne International Airport for departure to Israel in accordance with paragraph 2 of this Order, the Australian Federal Police are requested to delete the PASS Alerts currently in force in relation to the child and the mother and to permit their departure from Australia and for the avoidance of any doubt, any orders that exist at that time to prevent the departure of the said child from Australia be and are hereby discharged.

  6. That these return orders are conditional upon the requesting parent, THE FATHER:-

    a)booking and paying for the air tickets for the mother and the child to return to Israel and providing a copy of the proposed itinerary to the State Central Authority for forwarding to the respondent mother not less than fourteen (14) days prior to the proposed date of travel;

    b)making available to the respondent mother $AU6,000.00; and

    c)providing the mother, via the State Central Authority, with a written undertaking that he will not take legal action in Israel in relation to care of the child until the mother has arrived in Israel and then only on not less than 30 days notice to the mother;

  7. That in order to implement sub-paragraph 6(b) of this Order-:

    a)the respondent mother notify the State Central Authority within fourteen (14) days of the date of this Order of the account details of a relevant bank account in her name accessible in Israel into…

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State Central Authority and Daker [2008] FamCA 1271
Case
[2008] FamCA 1271
Decision Date

CaseChat Overview and Summary

The case of State Central Authority and Daker, heard by Bennett J of the Family Court of Australia, concerned an application for the return of a child, N, born in April 2004, to Israel under the Family Law (Child Abduction Convention) Regulations 1986. The applicant was the State Central Authority, and the respondent was the child's mother. The core of the dispute revolved around whether the child had been wrongfully removed from Israel and whether the conditions for the child's return had been met.

The court was required to determine whether the child, N, had been wrongfully removed from Israel, a contracting state to the Hague Convention on the Civil Aspects of International Child Abduction. Furthermore, the court had to consider the conditions under which the child should be returned, specifically addressing the arrangements for the mother's accompaniment, financial provisions, and undertakings from the father regarding future legal action in Israel. The court also had to consider the implications of the mother's potential non-compliance with the return order.

Bennett J reasoned that the child had indeed been wrongfully removed from Israel, triggering the obligation for return under the Convention. The court's orders reflected a comprehensive approach to facilitating this return, balancing the child's welfare with the rights of the parties. Key to the decision were the conditions imposed on the father, including the booking and payment of air tickets, the provision of $AU6,000 to the mother, and a written undertaking not to initiate legal action concerning the child's care in Israel without prior notice. These conditions were designed to ensure the mother's safe and supported return with the child.

The court ordered the child's return to Israel, with the mother to accompany him within 30 days, subject to the father fulfilling specific financial and undertaking obligations. The court also made detailed provisions regarding the handling of the child's passport, the transfer of funds, and the deletion of travel alerts by the Australian Federal Police upon departure. Liberty was reserved for the parties to apply regarding the implementation of the orders, particularly concerning flight arrangements and scenarios where the mother might not accompany the child. The applicant's and respondent's initial applications were otherwise dismissed.

Orders

Orders of the court

IT IS ORDERED:

1.

That the child N born … April 2004 be returned to Israel pursuant to the Family Law (Child Abduction Convention) Regulations 1986.

2.

That the State Central Authority and the respondent mother forthwith make such arrangements as are necessary for the child to return to Israel, in the company of the mother, within 30 days or such other date as the applicant State Central Authority may agree upon.

3.

That the Registrar or Proper Officer of the Family Court of Australia (Melbourne Registry) hand over the passport of the child to the legal representative of the State Central Authority upon the presentation of these orders to facilitate his return to Israel in accordance with this Order.

4.

That the applicant State Central Authority deliver the child’s passport to the mother within a reasonable time prior to the date on which it is arranged that the mother and child depart Australia for Israel.

5.

That upon presentation of the child at Melbourne International Airport for departure to Israel in accordance with paragraph 2 of this Order, the Australian Federal Police are requested to delete the PASS Alerts currently in force in relation to the child and the mother and to permit their departure from Australia and for the avoidance of any doubt, any orders that exist at that time to prevent the departure of the said child from Australia be and are hereby discharged.

6.

That these return orders are conditional upon the requesting parent, THE FATHER:-

a) booking and paying for the air tickets for the mother and the child to return to Israel and providing a copy of the proposed itinerary to the State Central Authority for forwarding to the respondent mother not less than fourteen (14) days prior to the proposed date of travel;

b) making available to the respondent mother $AU6,000.00; and

c) providing the mother, via the State Central Authority, with a written undertaking that he will not take legal action in Israel in relation to care of the child until the mother has arrived in Israel and then only on not less than 30 days notice to the mother;

7.

That in order to implement sub-paragraph 6(b) of this Order-:

a) the respondent mother notify the State Central Authority within fourteen (14) days of the date of this Order of the account details of a relevant bank account in her name accessible in Israel into which the requesting parent can transfer the $AU6,000.00 referred to in paragraph 6(b);

b) the State Central Authority provide the mother with any receipt from the relevant bank demonstrating the deposit of $AU6,000.00 into the nominated account of the respondent mother within seven (7) days of the date upon which the requesting parent receives notice of the respondent mother’s account details.

8.

That the respondent mother not access the $AU6,000.00 deposited by the requesting parent until she returns to Israel with the child.

9.

That liberty be reserved to the parties to apply in relation to implementation of this Order including but not limited to arrangements for the return flight to Israel and arrangements in the event that the respondent mother elects not to accompany the child.

10.

That the applicant’s Form 2 filed 23 July 2008 and the mother’s answer thereto filed 8 September 2008 be otherwise dismissed.

11.

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.

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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