State Central Authority and Lore

[2008] FamCA 159

FAMILY COURT OF AUSTRALIA

STATE CENTRAL AUTHORITY & LORE [2008] FamCA 159

FAMILY LAW – HAGUE CONVENTION – Return of child to New Zealand pursuant to 1980 Hague Convention – court satisfied that removal was in breach of requesting parent’s rights of custody

Family Law (Child Abduction Convention) Regulations 1986
Family Law Act 1975 (Cth)

APPLICANT: State Central Authority

RESPONDENT: Mr Lore

FILE NUMBER: MLC 3483 of 2007

DATE DELIVERED: 23 January 2008

PLACE DELIVERED: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 23 January 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Greenham

SOLICITOR FOR THE APPLICANT: Victorian Government Solicitors

COUNSEL FOR THE RESPONDENT: Mr C. Fatouras

SOLICITOR FOR THE RESPONDENT: Victoria Legal Aid

Orders

1. That I grant the application of the State Central Authority filed 28 March 2007 for the child … born … June 1998 to be returned to New Zealand pursuant to Regulation 16(1) of the Family Law (Child Abduction Convention) Regulations 1986.

2. That the respondent father and the applicant State Central Authority do all acts and things necessary to facilitate the return of the child to NZ by Qantas flight … departing Tullamarine airport at … on Sunday 27 January 2008 bound for Auckland and estimated to arrive at 6pm (Auckland time) (“the flight”).

3. The requesting parent be solely responsible for the cost of transport of the child to New Zealand as an unaccompanied minor. 

4. That as and from the departure from Australia of the flight paragraphs 2 and 4 of the Order made 29 March 2007 be and are hereby discharged AND IT IS REQUESTED that the Australian Federal Police remove any restraining order preventing the children from leaving Australia for the purpose of compliance with this Order. 

5. That paragraph 3 of the Order made 23 March 2007 be discharged and the father be entitled to collect the child’s passport today. 

6. That not less than 2 and a half hours before the scheduled departure of the flight the respondent father present and the child and the child’s passport to the airport and facilitate the child’s check in for the flight and delivery to International Departures.

7. That subject to being in possession of funds to do so or other arrangements being made, on or before 3:00pm on 25 January 2008 the solicitor for the State Central Authority confirm payment for the cost of the flight for the child and as soon as practicable thereafter notify the solicitors for the respondent father that the purchase of the ticket has been completed and that the child will travel on Sunday. 

8. That I reserve for determination by the courts in New Zealand the issue of whether the respondent father should indemnify the requesting parent for and pay to her an amount equivalent to whatever she pays for the flight back to New Zealand. 

9. That the parties have liberty to apply on short notice in relation to implementation of this Order such application to be made by arrangement with my Associate.

10. That my reasons for decision be transcribed and I DIRECT that a copy of this order and my reasons be sent to the Liaison Judge for New Zealand and to the Judge in the Family Court at North Shore, New Zealand. 

11. That all extant applications be otherwise dismissed. 

12. AND IT IS FURTHER DIRECTED that this matter be removed from the Active Pending Cases List maintained by the Court.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 3483 of 2007

State Central Authority 

Applicant

And

Mr Lore  

Respondent

REASONS FOR JUDGMENT

(ex tempore)

1. This is the final date for the hearing of the application of the State Central Authority for the return of the child to New Zealand pursuant to the provisions of the Family Law (Child Abduction Convention) Regulations 1986.  I have previously delivered reasons in this matter on 22 June 2007 and

   
   

   I incorporate those reasons into my decision this day. 

2. Since 22 June 2007 the outstanding issue has been the status of an order which was purported to be made in New Zealand on 1 September 2005.  The matter has been before me on several occasions and the applicant State Central Authority has been granted several indulgences to afford the requesting parent or its counterpart in New Zealand an opportunity to clarify the status of the order.  The irregular nature of the order is discussed in detail in my earlier reasons. 

3. The new material before the court today and upon which the applicant State Central Authority relies is a document from New Zealand titled "Clarification Judgment of Judge" in the Family Court of New Zealand at North Shore.  It is dated 19 December 2007.  It makes clear that court's opinion that the order made on 1 September 2005 ceased to have any force or effect as at 1 September 2006.  It follows, for reasons which I have discussed in my reasons published in June 2007, that the retention by the respondent father of the child in Australia in February 2007 was in breach of the rights of custody of the requesting parent. 

4. In these circumstances I grant the application of the State Central Authority for the immediate return of the child to New Zealand.  Notwithstanding, and perhaps even because this matter has had so many stops and starts, it is the case that the applicant State Central Authority is not in a position to say that they can confirm a reservation for the child to fly back to New Zealand.  The child’s school year starts some time between 29 January 2008 and 7 February 2008.  When I adjourned this matter back before me today, it was on the express understanding that the matter would be finalised today and the child and his parents would know where he would be starting his 2008 school year. 

5. I am concerned to relieve the respondent father of further appearances in court personally and from paying for legal representation, which today includes a solicitor and counsel. 

6. I have pronounced orders which provide for the child to travel back to

   
   New Zealand

   this Sunday.  However, it is the case that the State Central Authority have not heard from the requesting parent and nor does it know for certain that the requesting parent can meet the cost of that flight.  My orders provide that, if the requesting parent cannot meet the cost of the flight, the State Central Authority must advise the father's practitioners of the fact that the ticket has not been paid for.  If this occurs, I would not expect the respondent father to present the child at Tullamarine Airport next Sunday.  However, in the absence of a positive statement that the ticket cannot be paid for and has not been paid for, the child should be presented in accordance with the orders well prior to the estimated departure time of the flight. 

7. I will reserve liberty to the parties to apply in relation to the mechanical provisions of the child’s return, and that is the liberty that they will use to come before the court if he is not on the flight on Sunday. 

8. It is most unfortunate that the State Central Authority could not have arranged access to sufficient funds from the requesting parent for me to be able to pronounce orders incorporating reference to a paid-for air passage.  I do not mean that the State Central Authority should be paying the fares itself or that they be funded by the Australian Government.  It would not have been difficult for the applicant to require the requesting parent to send monies over to be held in trust until they were required or, if not required, to be refunded.  Incurring the expense of repatriating a child to a Convention Country is a foreseeable expense in proceedings of this nature to which consideration should be given at the time the request is received and the application is first made to the Court. 

9. In this case the technical difficulties with previous orders made in New Zealand and whether any steps could or would be taken to address them has meant that the result was never easy to foresee.  From time to time I urged the requesting parent (through the applicant) and the respondent to consider mediation in relation to what time the child should spend with the parent with whom he does not primarily live no matter which way these proceedings are concluded.  In this context, what times the child should spend with the father following his return to New Zealand.  As far as I know, no mediation took place.  However, some agreement seems to have emerged between the requesting parent and the respondent father, albeit communicated via the State Central Authority and practitioners for the father.  It is that the child will travel to Australia twice a year for two weeks in the second school term vacation, which appears to fall between 4 and 21 July in 2008, and for four weeks each the long summer school vacation, which appears to fall between 19 December 2008 and late January 2009. 

10. I am also informed that it is agreed that the parties will share the reasonable cost of travelling.  Of course, I do not make any orders in this respect.  It is implicit in my decision that this Court recognises that New Zealand is the appropriate venue for parenting issues to be litigated or formalised.  My comments are merely intended to convey my general view that the parties should not leave up in the air what arrangements the child has to come back to Australia to see the respondent and his family. 

11. Having regard to the history of this case, my view is that the parties are likely to benefit from orders which define their rights and from which any deviation from those orders would be all the more apparent.  Otherwise, I am happy to say that these very long running proceedings are at an end and I trust all will be well for this family into the future. 

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett

Associate: 

Date:  13 March 2008