State Central Authority and Ustinov (No. 3)

[2008] FamCA 790

FAMILY COURT OF AUSTRALIA

STATE CENTRAL AUTHORITY & USTINOV (NO. 3) [2008] FamCA 790

FAMILY LAW – CHILDREN – Hague Convention – orders varying previous orders to accommodate children’s need for counselling prior to their departure

Family Law Act 1975 (Cth)

APPLICANT: COMMISSIONER OF POLICE SOUTH AUSTRALIA (STATE CENTRAL AUTHORITY)

RESPONDENT: MR USTINOV

FILE NUMBER: ADC 4796 of 2007

DATE DELIVERED: 17 SEPTEMBER 2008

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

EX TEMPORE REASONS OF: BURR J

HEARING DATE: 17 SEPTEMBER 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: MS OLSSON

SOLICITOR FOR THE APPLICANT: CROWN SOLICITOR'S OFFICE

COUNSEL FOR THE RESPONDENT: MR BERMAN

SOLICITOR FOR THE RESPONDENT: ADEY LAWYERS

UPON NOTING that the father’s Appeal from the Orders of the Honourable Justice Dawe of 22 April 2008 was dismissed on 25 July 2008

Orders

1. That paragraphs 1(a), 1(f) and 1(j) of the Orders made by the Honourable Justice Dawe on 22 April 2008 be amended as follows:-

   1.1.     in relation to paragraph 1(a), by inserting the date Sunday 26 October 2008 in lieu of 12 May 2008;

   1.2.     in relation to paragraph 1(f), by inserting the date Monday 13 October 2008 in lieu of 30 April 2008; and

   1.3.     in relation to paragraph 1(j), by inserting the date Sunday 26 October 2008 in lieu of 12 May 2008.

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

FAMILY COURT OF AUSTRALIA  AT  ADELAIDE

FILE NUMBER: ADC 4796  of   2007

COMMISSIONER OF POLICE SOUTH AUSTRALIA (STATE CENTRAL AUTHORITY) 

Applicant

And

MR USTINOV

Respondent

REASONS FOR JUDGMENT

1. I have before me today for determination the Application in a Case filed by the Central Authority on 31 July 2008.  Among other materials, I have had regard to the Reasons for Judgment of her Honour Justice Dawe delivered on 17 April 2008 and the Orders made on 22 April 2008, the Affidavits filed this day of Timothy Adey, the father and Dr W.  I have further had regard to the Affidavit of Counsel for the Central Authority Ms Jennifer Olsson, also this day tendered.  In addition, there is the Affidavit of Ms Olsson filed on 31 July 2008 supporting the aforementioned Application in a Case.

2. The father advises the Court that he is not now pursuing special leave to appeal to the High Court from the decision of the Full Court delivered in these proceedings. He further informs the Court today that he will not be accompanying the children on their return to Bulgaria.  The father, whilst not altering his view that it is not the best result for his children, does not now oppose the return of the children to Bulgaria in a legal sense.  Clearly he is still opposed to it in an emotional sense.  He recognises that the due processes of the law have been followed, that he has had a trial, that he has had an Appeal and that those avenues are exhausted. 

3. His concentration today, through his Counsel, has been upon paragraph 7 of the Orders of Justice Dawe made on 22 April 2008 which reads in these terms:-

   “It is requested that the Acting Manager of Child Dispute Services in Adelaide provide prompt information to the father to enable him to arrange a suitable appointment for the father and the children (at the father’s cost) with a suitably qualified child psychologist to explain to the children the father’s need to comply with the Court orders for their return to Bulgaria and to assist the children.”

   The particular contention has been as to what her Honour meant by the words which appear at the very conclusion of that paragraph, namely “and to assist the children”.

4. I accept the material filed by the father today at face value, namely as to the difficulty that he has encountered in securing the assistance of a counsellor or psychologist for the children in order to undertake the processes that her Honour had in mind.  I have reviewed her Honour’s decision in order to gain a better understanding as to what was intended by paragraph 7 of her Orders of 22 April 2008 and in particular, I have had regard to paragraphs 118, 129, 130, 135, 136, 144 and 147 of her Honour’s Reasons for Judgment.  I am satisfied that her Honour had concerns about the children’s adjustment to the Orders that she had made for their return to Bulgaria and that the purpose of the Order was to afford to the children as much emotional support as was reasonable within the context of her decision.  Accordingly, within the spirit of her Honour’s Reasons, I will allow additional time for that counselling to take place. 

5. I note that the father has been able to identify and secure an appointment with a qualified psychologist, namely a Mr Q, and that the first appointment for the children is set for this Friday next, 19 September 2008.

6. I am satisfied from reading her Honour’s Reasons for Judgment in assisting me to an understanding of what her Honour meant by paragraph 7, that more than one appointment with the psychologist was countenanced by her Honour and certainly fits the theme and intention contained in her Honour’s reasons.

7. The information contained in the father’s Affidavit filed this day clearly supports the need for the children to receive some extra assistance prior to their departure.  There is though nothing in the materials before me that suggests that the children have developed a psychiatric need, despite an appointment having been made for psychiatrist Dr B to see the children on 31 October 2008.

8. As the Hague Convention recognises, facilities in order to assist children accommodate orders that are made under the Convention are readily available in most Convention countries.  Certainly the evidence contained in the materials provided by Ms Olsson today indicate that the mother is alert to the children’s need for psychological assistance and has indicated that she has made arrangements for them which will be immediately put in train once the children return to Bulgaria.  Thus I am satisfied on that material too that the children will continue to receive any assistance in that area that they may need upon their return to Bulgaria.  However, I am of the view that several appointments here prior to their departure would be of great assistance to them and would accommodate her Honour’s concerns as expressed in her Reasons for Judgment.

9. Turning now to the Application in a Case, I therefore make Orders varying the Orders of her Honour made on 22 April 2008 to accommodate the children’s need for counselling.  I accordingly vary the Orders sought in the said Application in a Case to reflect her Honour’s intentions in the following respects:-

   9.1.As to (a), by inserting Sunday 26 October 2008 in lieu of 26 August 2008;

   9.2.As to (f), by inserting Monday 13 October 2008 in lieu of 13 August 2008; and

   9.3.As to (j), by inserting Sunday 26 October 2008 in lieu of 26 August 2008.

I certify that the preceding 9 (nine) paragraphs are a true copy of the Ex tempore reasons for judgment of the Honourable Justice Burr.

Associate: 

Date:  17 September 2008