State Central Authority and Uurainen (No. 2)

[2008] FamCA 1046

FAMILY COURT OF AUSTRALIA

STATE CENTRAL AUTHORITY & UURAINEN (NO. 2) [2008] FamCA 1046

FAMILY LAW – CHILD ABDUCTION – Hague Convention – Application outside 12 months – 4 year old child – Child settled in new environment – Discretion – Hardship

APPLICANT: State Central Authority

RESPONDENT: Ms Uurainen

FILE NUMBER: MLC 6385 of 2008

DATE DELIVERED: 5 November 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Jordan J

HEARING DATE: 5 November 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms R. Stoikovska

SOLICITOR FOR THE APPLICANT:

Director, Legal Services Branch,

Melbourne

COUNSEL FOR THE RESPONDENT: Mr I. C. Duffy

SOLICITOR FOR THE RESPONDENT: McCracken & McCracken

Orders

IT IS ORDERED

1. That the application filed 14 July 2008 be dismissed.

IT IS REQUESTED

1. That the Australian Federal Police remove the name of the child, …, born … December 2003, from the Airport Watch List in force at all points of arrival and departure of the Commonwealth of Australia.

IT IS FURTHER ORDERED

1. That any passports in relation to the said child held by the Registrar of the Family Court of Australia at Melbourne be returned.

2. That the proceedings be removed from the Active Pending Cases List.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 6385 of 2008

STATE CENTRAL AUTHORITY

Applicant

And

MS UURAINEN

Respondent

REASONS FOR JUDGMENT

EX TEMPORE

1. This is an application by the Central Authority for an order under the Hague Convention pursuant to the Family Law (Child Abduction Convention) Regulations for the return of the child, a four‑year‑old girl born in December 2003, to Finland.

2. The evidence establishes to my satisfaction, or it has been conceded, that the child was removed from Finland to Australia in January 2007.  It is not argued otherwise than that the habitual place of residence of the child prior to her removal was Finland.  At least for the present purposes, there is evidence capable of supporting a finding that, at the time, the father had rights of custody pursuant to an agreement executed by the parties in 2004 and confirmed by the Finnish City Social and Health Board in accordance with Section 8 of the Child Custody and Rights of Access Act.

3. For the purposes of my deliberations, I proceed upon the basis that, prior to the removal of the child from Finland, the father was exercising rights of custody at the time.

4. There is issue between the mother and father about the state of the father's knowledge and consent in relation to the removal of the child from Finland.  It is unnecessary to address that question, because it is common ground that, when the father was advised of the mother's intention to retain the child in Australia, he made it very clear to her that she did not have his consent.

5. There is an issue between the parties whether…