State Central Authority and Del Rosario (No 2)

[2019] FamCA 1007

FAMILY COURT OF AUSTRALIA

STATE CENTRAL AUTHORITY & DEL ROSARIO (NO. 2) [2019] FamCA 1007

FAMILY LAW – CHILD ABDUCTION – where implementation of return order is varied so that the child is returned to Brazil after the courts of competent jurisdiction in Brazil are out of recess and sitting usual times – economic consequences to requesting parent considered of less importance than a safe and predictable return of child to state of habitual residence.

APPLICANT: State Central Authority

RESPONDENT: Ms Del Rosario

INDEPENDENT CHILDREN’S LAWYER: Ms Kourtis

FILE NUMBER: MLC 1460 of 2019

DATE DELIVERED: 20 December 2019

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 20 December 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Greenham

SOLICITOR FOR THE APPLICANT: Department of Human Services, Legal Services Branch

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT: Nicholes Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER McKean Park Lawyers

Orders

1. Paragraph 3 of the Order made on 26 November 2019 be varied further so that the date of departure of the child X born … 2016 (“the child”) from the Commonwealth of Australia be forthwith after, but not earlier than 20 January 2020.

2. Paragraphs 3 and 4 of the orders sought by the mother in the Application in a Case filed this day be dismissed.

3. The practitioner for the mother forthwith retrieve the passport of the child from the mother and hold it for safekeeping until further order of the Court.

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

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  Del Rosario 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 1460 of 2019

STATE CENTRAL AUTHORITY

Applicant

And

MS DEL ROSARIO

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

EX TEMPORE REASONS FOR JUDGMENT

1. This matter comes before me as an urgent application where the child in Hague return proceedings is due to fly to Brazil on Sunday, 21 December 2019.  It’s not timely, but the application is brought on today, Friday 20 December 2019, seeking to upset those arrangements. 

2. Broadly speaking, the application is made pursuant to liberty to apply in relation to implementation of the return order.  It rests on two bases.

3. The first basis is that the Court in Brazil, which has previously made orders which correspond with orders made in these proceedings, is going into recess from 20 December to 20 January 2020.  That means that when the mother lands in Brazil with the child, she will not have access to the Court to enforce its orders already made.  I don’t lose sight of the fact that the conditions to return required a moratorium on proceedings being instituted between the parties for some four weeks after the child is returned to Brazil.  However, that moratorium would not, as a matter of logic, have impacted on either party’s ability to seek enforcement or take advantage of the protection afforded to them by orders which have been made in Brazil. 

4. On an earlier occasion, which I think was at the beginning of this month, I did voice my concern about the child being returned during a period of judicial vacation when there were, effectively, no judges on usual duties.  That remains a concern for me. 

5. The second basis of the application made by the mother is that the moratorium in relation to proceedings not being taken for four weeks has not been made in Brazil, or, if it has been made, it is considered unconstitutional, according to Brazilian law. 

6. On an earlier occasion, I have discussed the mirror order made in Brazil, and whilst it is not in perfectly clear terms, I am satisfied that it does the job adequately.  The other attack on it is its “unconstitutionality”, in particular, that it is supposed to be contrary to the Constitution of the Federative Republic of Brazil of 1988 in Article 5(xxxv), which provides that, “The law shall not exclude any injury or threat to a right from consideration of the judicial power.”  I’m not graced with evidence of how the issue of unconstitutionality has come before any Court and what any Court has said about it. 

7. The mother supports her application by an affidavit by a solicitor who has previously acted for her and is referred to by her in her affidavit as “one of the solicitors” who acts for her.  The solicitor for the mother relies on a document from the Public Ministry from the state of City A in Brazil dated 12 December 2019, in which someone, who is a prosecutor and a legal analyst, appears to proffer an opinion that the moratorium would be unconstitutional.  I don’t know the status of “a prosecutor” under Brazilian law. 

8. I don’t know the status of the “legal analyst” under Brazilian law, except I suspect that a legal analyst has less weight than a prosecutor, but I’m not sure what weight a prosecutor carries, much less a prosecutor who may not be involved in the proceedings and/or retained by any party in the proceedings in which the order was made. 

9. I am not prepared to alter the child’s travel arrangements on the basis of the alleged non-compliance with the moratorium provisions being incorporated into or finding expression into law which is enforceable in Brazil, but I will do so in the context of the child not being required to return whilst the Court is on holiday recess until 20 January 2020.  It is appropriate that the mother be able to access the competent courts in Brazil once she returns to enforce the mirror order which has been brought into existence.  I have considered the likely economic loss to the requesting parent.  That is significant, but not as significant as seeing an orderly and predictable return for the child.  When the judicial vacation was first raised with me in early December, I expressed concern.  It was then open to the parties to make arrangements accordingly.  The child should be returned forthwith after 20 January 2020.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 20 December 2019.

Associate: 

Date:  23 December 2019