State Central Authority and Hotzner
[2010] FamCA 957
•8 July 2010
FAMILY COURT OF AUSTRALIA
| STATE CENTRAL AUTHORITY & HOTZNER | [2010] FamCA 957 |
| FAMILY LAW – CHILD ABDUCTION – Hague Convention – Interim |
| APPLICANT: | State Central Authority |
| RESPONDENT: | Ms Hotzner |
| INDEPENDENT CHILDREN’S LAWYER: | Ms M Lonergan |
| FILE NUMBER: | MLC | 4388 | of | 2010 |
| DATE DELIVERED: | 8 July 2010 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Bennett J |
| HEARING DATE: | 8 July 2010 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Noble |
| SOLICITOR FOR THE APPLICANT: | State Central Authority Department of Human Services | |
| COUNSEL FOR THE RESPONDENT MOTHER: | Ms Lundberg | |
| SOLICITOR FOR THE RESPONDENT MOTHER: | Taussig Cherrie & Associates |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Victoria Legal Aid |
Orders
IT IS ORDERED:
That the time in which the State Central Authority is to file and serve any further evidence upon which it proposes to rely, as provided for by paragraph 7 of the Order made 31 May 2010, be extended to 12.00 noon on 22 July 2010.
That the mother is at liberty to participate in any assessment process for the purpose of the Regulation 26(1) Report which is to be prepared pursuant to paragraph 8 of the Order made on 31 May 2010 notwithstanding that the father may elect not to participate in the process.
That the said Regulation 26(1) Report not be finalised until the family consultant has had an opportunity to peruse any material filed by the State Central Authority pursuant to paragraph 1 of this Order or 4.00 pm on 22 July 2010, whichever is the later.
That the parties have liberty to apply jointly for orders to be made which finalise proceedings and to contact my Associate, or my Court Officer, in the event that they seek final orders.
That notwithstanding any negotiations between the parties, the preparation of the Regulation 26(1) Report is to proceed unless orders have been made disposing of the proceedings or that part of the proceedings which relates to the objection of the oldest child to return to Israel.
That the reasons for judgment this day be transcribed and when settled copies be made available to the parties.
AND IT IS NOTED BY THE COURT:
(a)That there is no objection on behalf of the State Central Authority to the form of the evidence of Mr F in the document which appears to have been affirmed on 22 June 2010 and was filed on 2 July 2010.
(b)That the parties are participating in negotiations with a view to resolution of the proceedings currently before the Court.
(c)That interviews for the Regulation 26(1) Report will be conducted by Ms L, family consultant, at Melbourne on Tuesday 13 July 2010.
IT IS NOTED that publication of this judgment under the pseudonym State Central Authority & Hotzner is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 4388 of 2010
| STATE CENTRAL AUTHORITY |
Applicant
And
| MS HOTZNER |
Respondent
And
| INDEPENDENT CHILDREN’S LAWYER |
REASONS FOR JUDGMENT
(ex-tempore)
This matter comes before me for mention. The matters requiring determination today were the extent to which the requesting parent and the respondent mother could participate in the report, which is to be prepared pursuant to regulation 26(1), dealing with the objections of the oldest child, D, born in March 1995, to return to Israel. The matter was last before me on 31 May 2010 when it was not clear whether or not the father wished to participate. It was clear that the mother wished to participate.
In the intervening five weeks the State Central Authority, for whom Ms Noble appears this morning, has obtained instructions that the requesting parent will not participate in any assessment process. The context of that lack of participation is said to be that the requesting parent and the respondent mother are participating in a private mediation. This has been clarified by counsel for the mother, Mr Strum, to be that from the mother’s perspective it is not so much a mediation as negotiations conducted through Rabbinical representatives for both of the parties.
It appears, based on what is said by the independent children’s lawyer, that the State Central Authority and the practitioners for the mother, that these negotiations are at an advanced stage and that there is some prospect that they may be able to sort out a disposition of the proceedings by agreement, rather than requiring a judicial determination. However, there is no certainty in this regard and, whilst mediation is a course which should be explored, I’m satisfied, it is a course which must not be permitted to delay the judicial process.
I encourage the parties to see if they can reach a negotiated or mediated agreement, but if they can not, the hearing must proceed as scheduled on 6 August 2010.
Whilst the instructions from the requesting parent are communicated today as being complete, in the event that the requesting parent changes his mind and does wish to proceed, it is always open to him through the appropriate channels to contact the State Central Authority, who should immediately contact my associate, as well as the director of Child Dispute Services.
In the event that the father does not participate in the assessment process, I expect that the family consultant will interview the mother and that the report will, as a consequence, contain the mother’s perspective or dimensions on the objections of the child, D. The fact that it does not contain any perspective of the father in that regard will be a matter for which he is solely responsible.
I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 8 July 2010.
Associate:
Date: 26 October 2010
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