State Central Authority and Tirzsa (No. 3)

[2008] FamCA 206

FAMILY COURT OF AUSTRALIA

STATE CENTRAL AUTHORITY & TIRZSA (No. 3) [2008] FamCA 206

FAMILY LAW – CHILD ABDUCTION – HAGUE CONVENTION – Application by the S.C.A. was withdrawn as both the Mother (who was respondent to the proceedings) and the Father came to a private resolution wherein they agreed that their 6 year old son would remain in Australia with annual visits from the father – Final consent orders were also made pursuant to the provisions of the Family Law Act 1975 Cth reflecting this arrangement.

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

APPLICANT: STATE CENTRAL AUTHORITY - SECRETARY TO THE DEPARTMENT OF HUMAN SERVICES

RESPONDENT: MS TIRZSA

FILE NUMBER: MLC 10788 of 2007

DATE DELIVERED: 13 March 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Guest J

HEARING DATE: 13 March 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr O’Shannessy

SOLICITOR FOR THE APPLICANT: Victorian Government Solicitor

THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT:

Orders

1. That all extant applications be marked withdrawn.

2. That all orders previously made in the proceedings be discharged AND THAT the passport of the child, …, (“the child”) who was born … March 2001 be returned to the wife.

3. That the child, …, born … March 2001, shall live with the wife and she shall have sole parental responsibility for him.

4. That the husband shall spend time with and communicate with the child as follows:

   (a)Once a year during the Australian summer school holidays for one month commencing from the end of December until the end of January;

   (b)Such other times as the parents may agree.

5. That:

   (a)For the purpose of the time spent in paragraph 2 the husband shall book and pay for his return airline ticket and accommodation in Australia;

   (b)The husband shall, by no later than December 1 in each year, give, in writing, to the wife details of his travel itinerary for his scheduled trips to Australia, or advice that he will not be making the scheduled trip, as the case may be.  He shall further provide the wife with details of his accommodation during his stay in Australia, as and when those details become available.  In the event the husband advises he is unable to make a scheduled trip, the wife shall be at liberty to make other plans for the child for that summer vacation.

6. That on the child commencing secondary school or attaining the age of 13 years, whichever occurs the later, and, subject to the child’s wishes, the husband may, at the husband’s expense, spend time with and communicate with the child, in Croatia:

   (a)for up to one month of the Australian summer school holidays;

   (b)such other times as the parents may agree.

7. That:

   (a)For the first time the child travels to Croatia, the husband shall accompany the child to and from Croatia, at the husband’s expense;

   (b)Thereafter, if the child is to travel to Croatia, the husband and/or the wife shall be at liberty to accompany the child at their own expense;

   (c) The husband shall, by no later than December 1 in each year, confirm with the wife whether the child wishes to travel to Croatia for those holidays and, if so, the husband shall provide in writing, no later than 21 days prior to departure, details of the child’s scheduled flights and arrangements for the ticketing.

8. That the husband and the wife shall do all things necessary to facilitate the time spent as provided for in paragraphs 2 and 4 therein.

9. That the husband shall have telephone communication with the child at any reasonable time up until 7.00 pm local Australian time.  The husband may further communicate with the child by email or standard mail.

10. That the wife shall ensure that the husband receives as soon as practicable, copies of the child’s school reports and school photos, as they become available, at her own expense.

11. That the wife shall notify the husband as soon as practicable of any serious medical emergencies involving the child and/or the wife.  The husband shall, as soon as practicable, notify the wife of any serious medical emergency involving the husband.

12. That both the husband and wife shall each keep the other notified of their current residential addresses, telephone and mobile numbers, email and any other form of contact details.

13. That pursuant to s.65DA(2) and s.62B of the Family Law Act 1975, the particulars of 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 these particulars are included in these orders.

IT IS DIRECTED

1. That the ex tempore judgment delivered this day be transcribed, and when transcribed a copy be placed on the Court file and made available to the parties.

NOTATION:

1. These orders are intended to reflect the intent of the Orders made in the Municipal Civil Court in Zagreb in Case No. … July 2006, and in Case No. … February 2008.

2. The wife has been forwarding the child’s school reports to his father.

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

Family Court of Australia at Melbourne

FILE NUMBER: MLC 10788 of 2007

STATE CENTRAL AUTHORITY - SECRETARY TO THE DEPARTMENT OF HUMAN SERVICES 

Applicant

And

Ms TIRZSA

Respondent

REASONS FOR JUDGMENT

1. In this matter the State Central Authority, as Applicant, caused to be filed proceedings on 27 September 2007 seeking orders for the return of the child, who was born in March 2001, to Croatia pursuant to the Family Law (Child Abduction Convention) Regulations 1986. It was alleged that the child had been wrongfully removed from Croatia to Australia by the respondent, the mother.

2. The mother caused to be filed an Answer and Cross-Application on 18 December 2007.  Earlier, orders had been made by Dessau J on 3 October 2007, on an ex parte basis, providing for orders restraining the mother from removing the child from the Commonwealth of Australia, together with other facilitating orders. 

3. By way of background, the father was born in Croatia in March 1951.  He is 57 years of age and holds professional qualifications.  The mother was also born in Croatia in July 1969 and is 38 years old.  She apparently has capacity to earn income as a technician.

4. As I understand it, the parties married in Vienna, the Republic of Austria in October 1999 and separated, on the mother’s version of the events on 20 February 2004.  In his Reply dated 9 January 2008 in the proceedings, the father asserted that they lived together “by the end of May 2006” and that for the duration of the marriage their son has been raised jointly by them.  Their son, as I said was born in March 2001. 

5. The parties’ marriage was dissolved by order of the Municipal Court of Zagreb in July 2006.  Both parties were represented.  Orders were made on that occasion that the child “is entrusted for care and education” to his mother whilst the father, in addition to the provision of child support had an order for contact in his favour every Monday and Friday from 4 pm to 8 pm, every second weekend starting the Saturday at 9 am until Sunday 6 pm as well as for one half of every school holiday and every second religious or national holiday.

6. Following the orders made by Dessau J on 3 October 2007 the matter came next before Watt J on 11 October 2007 and then before Bennett J on 1 November 2007, on which day her Honour made certain procedural orders for the filing of documents.  The matter returned again to court on 29 November 2007 before Carter J when her Honour made further facilitating orders for the filing of documents by the mother and in addition ordered that in the event she did not comply with her obligations pursuant to the orders the applicant be at liberty to apply to have the matter heard on an undefended basis.

7. The hearing date of 10 December 2007 was vacated and otherwise adjourned for final hearing on 17 January 2008 on which day the mother appeared in person and Mr O'Shannessy appeared for the State Central Authority.  Following detailed submissions, all extant applications were adjourned for mention only before me on 24 January 2008 as there were a number of issues that arose at the hearing that required further investigation.  The matter again returned to me on 24 January 2008 and following a request from both parties, was adjourned to 14 February 2008. 

8. On that date, there is on the court file a short extempore judgment wherein I recorded the basis for the further adjournment of the matter to 5 March 2008.  An application had been made by the applicant for that adjournment so as to enable investigation of proceedings brought by the wife in Zagreb and the effect of the order made in Croatia resulting from those proceedings.  It was clear that additional matters requiring investigation were still outstanding.  Those matters are recorded in narrative form in my short judgment.  I note in paragraph 5 of that judgment the following:

   “It seems to me that this matter is capable of a sensible resolution.  If not, then the issues raised by me at the earlier hearing must be answered and I will make a decision one way or the other on the appropriate material that I have before me.” 

9. The matter returned on 5 March 2008 on which day Ms Thai appeared for the State Central Authority and the mother in person, with the assistance of an interpreter.  By consent, I ordered that the extant applications be adjourned to 9.30 am this day, and that a Notation be made to the order in the following terms:

   “The purpose of the adjournment sought by the State Central Authority is to provide further time for the parties to negotiate a resolution.”

   Short extempore reasons for judgment are on the court file narrating the events of that day. 

10. The matter has returned to me this morning.  Mr O'Shannessy continues to appear for the applicant and the mother appears in person, assisted by an interpreter.  I have also had the advantage of hearing Ms Billeam from Legal Aid, Victoria, who does not appear on the record, but has been able to helpfully assist the mother in the past on this issue.

11. Mr O'Shannessy made it perfectly clear, and such is the fact, that the State Central Authority does “not act for the father”.  He had been provided with an Application for Consent Orders, which I have marked Exhibit “A”.  That Application is jointly brought by the mother (as applicant) and the father (as respondent) and has annexed to it a Minute of Proposed Consent Orders which purportedly bears the signature of the husband.  I have been helpfully informed by Mr O'Shannessy that the State Central Authority has made inquiries and is satisfied that it is the husband's signature in fact to that document.  They are also satisfied the husband is a party consenting to the orders annexed to the Application for Consent Orders.

12. Mr O'Shannessy informed me that the State Central Authority is also satisfied that the husband consents to the orders and does not oppose the orders sought.  In those circumstances, it appears appropriate that as a matter of procedure, I should grant leave to the wife and the husband to file the Application for Consent Orders in the form presented to me which is as a copy, together with the Minute of Proposed Consent Orders.  I propose to make orders in the terms of the Minute of Consent Orders sought by them which will be final orders.

13. Following the making of those orders, it then appears appropriate that a second order be prepared under the heading of the State Central Authority, Secretary to the Department of Human Services as applicant, and the mother as respondent (as headed in the application filed on 27 September 2007) and marked "withdrawn".  That will tidy up that Application.  It will further bring to an end the role the State Central Authority.  There will then be orders pursuant to the Family Law Act (1975) (as amended) wherein the parties themselves consent to final orders being made in the terms of the Minute of Consent Orders annexed to the Application for Consent Orders.

14. It has been pointed out to me by Ms Billeam, and helpfully so, that Exhibit “A” is itself, a copy document.  In the circumstances, the wife undertook that she will cause to be filed the original Application for Consent Orders and Minute of Consent Orders bearing the husband's original signature.  That will be done as soon as reasonably practicable.  I accept that undertaking. 

15. I congratulate the parties on having the dignity in coming to this arrangement for it takes considerable understanding in the circumstances to entertain orders of this kind.  However, I wish to make it clear and leave it on the record that the orders contained in Exhibit “A,” being the Minute of Proposed Consent Orders which I will make, are to be complied with and honoured in every letter of each word therein set out.

16. I make it clear for the benefit of the parties that the Australian Family Law Act as amended by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (which amendments were passed on 10 May 2006) provides under Part VII Division 1, Subdivision B, certain objects and principles. The parties should understand that the principles underlying the objects of family law in this country are that, save where it would be contrary to his best interests, the child has a right to know and be cared for by both his mother and his father. Furthermore, he has a right to spend time on a regular basis with and communicate on a regular basis with both of his parents and other people significant to his care, welfare and development.

17. It is my recollection of the background to the matter that the mother has remarried and has another child by that union and that she, together with her husband, their child and the child subject of this judgment live in a suburb outside central Melbourne.  I am satisfied from the documents I have read, that the child is attending school and progressing satisfactorily. 

18. There is associated with this case what could be appropriately styled as the tyranny of distance between the city of Zagreb in Croatia and Melbourne.  These orders provide for the child to maintain his relationship with his father.  I recall reading the father's material set out in the court file, and it is plain to me that he has a fond and loving relationship with his son.  It will be incumbent upon the mother in these proceedings to ensure that the image of the absent father is not lost to the child but maintained and perpetuated at all times in the absence of the father physically from this county.

19. It seems to me also it could be said that the father has approached these proceedings as a matter of personal sacrifice and in the best interests of his son.  That should be both understood and respected by the mother.  Accordingly it is my expectation that she will nurture the image of the absent father to the child by the maintenance of photographs and telephone calls of course, and importantly foster his heritage. 

20. The parties, as I have already indicated, are to be congratulated on coming to this sensible arrangement and I wish them all the best for the future.  In the circumstances I make orders in terms of Exhibit “A”.  They will be taken out by the court.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Guest.

Associate: 

Date:  1 April 2008