FAMILY COURT OF AUSTRALIA
| State Central Authority & Del Rosario | [2019] FamCA 607 |
| FAMILY LAW – CHILD ABDUCTION – Hague Convention – return to Brazil – where wrongful removal conceded. FAMILY LAW – CHILD ABDUCTION – Hague Convention – grave risk of harm and intolerable situation exception – where grave risk of harm could be ameliorated by conditions to return – conditions included suspending recently obtained parenting order in Brazil whereby the child would be placed in the care of the father (whom the child has never met) and have only supervised time with the mother. FAMILY LAW – CHILD ABDUCTION – Hague Convention – reliance on exception that father was not actually exercising rights of custody immediately before the wrongful removal – where father had never met child – where father had a right to determine child’s residence – where particular right of custody could be exercised passively. FAMILY LAW – CHILD ABDUCTION – Hague Convention – how discretion to refuse return would have been exercised had the court been satisfied that an exception to return was made out FAMILY LAW – CHILD ABDUCTION – Hague Convention – direct judicial communication. |
| Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children Convention of 25 October 1980 on the Civil Aspects of International Child Abduction Evidence Act 1995 (Cth) Family Law (Child Abduction Convention) Regulations 1986 (Cth) United Nations, Vienna Convention on the Law of Treaties, 23 May 1969, United Nations, Treaty Series, vol. 1155, p. 331. |
| De L v Director General, NSW Department of Community Services (1996) 187 CLR 640 DP v Commonwealth Central Authority (2001) 206 CLR 401 Friedrich v Friedrich 78 F.3d 1060 H v H (Abduction: Acquiescence) [1996] 2 FLR 570 HZ and SCA [2006] FamCA 446 JLM v Director-General NZW Department of Community Services [2001] HCA 39 King Investments Solutions Pty Ltd v Hussain and Another [2005] NSWSC 1076 McCarthy v McCarthy (1994) SLT 743 MW v Director-General, Department of Community Services [2008] HCA 12 Re C (Abduction: grave risk of physical or psychological harm) [1999] 2 FLR 478 Re D (A Child)(Abduction: Rights of Custody) [2007] 1 AC 619 Re E (Children) (FC) [2011] UKSC 27 State Central Authority & Young (Rights of Custody) [2012] FamCA 843 TB v JB [2000] EWCA Civ 337 W v W (Child Abduction: Acquiescence) [1993] 2 FLR 211 |
| APPLICANT: | State Central Authority |
| RESPONDENT: | Ms Del Rosario |
| Independent children’s lawyer: | Ms Kourtis |
| FILE NUMBER: | MLC | 1460 | of | 2019 |
| DATE DELIVERED: | 14 August 2019 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Bennett J |
| HEARING DATE: | 8, 9 and 10 April, 20 and 21 May 2019 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Julia Greenham |
| SOLICITOR FOR THE APPLICANT: | Department of Health and Human Services, Legal Services Branch |
| COUNSEL FOR THE RESPONDENT: | Ms Sarah Fisken |
| SOLICiTOR FOR THE RESPONDENT: | Melbourne Family Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Eleanor Mallett |
| SOLICITOR FOR THE INDEPENDENT… |
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- AGLC
- State Central Authority & Del Rosario [2019] FamCA 607
- Case
- [2019] FamCA 607
- Decision Date
CaseChat Overview and Summary
The court was required to determine if the respondent mother could establish an exception to the child's return to Brazil. This involved considering whether the father, who had never met the child, was exercising rights of custody at the time of the removal, and whether a grave risk of harm could be ameliorated by conditions imposed on the return. The court also considered how it would have exercised its discretion to refuse return had an exception been made out.
Bennett J found that while the mother had established a grave risk of harm, this risk could be mitigated by imposing specific conditions on the child's return to Brazil. These conditions included suspending a recently obtained Brazilian parenting order that would have placed the child in the father's care with only supervised time with the mother. The court reasoned that the father, despite never meeting the child, possessed a right to determine the child's residence, which could be exercised passively. The court ultimately ordered the child's return to Brazil, subject to a comprehensive set of conditions designed to protect the child and mother, including suspending the existing Brazilian order and requiring the father to obtain new orders from a Brazilian court that would grant the child residence with the mother and restrict the father's contact.
Orders
Orders of the court
IT IS ORDERED THAT
The order for return
1.
Subject to compliance with paragraphs 2, 3, 5, 8 and 12 of this Order on or before 1 April 2020, the child X born … 2016 be returned to Brazil.
Conditions to return
2.
The father forthwith do all acts and things necessary to suspend the operation of the order made by Judge … of the Third Family and Probate Court in the Court of Appeals in the state of City A, Brazil on … February 2019 (“the Brazilian Order”) so that the order remains suspended until the happening of whichever of the following two events last occurs:
a) The expiration of four weeks following the return of the child X born … 2016 to Brazil;
b) A competent court in Brazil becoming seized of the matter and making an interim determination to the contrary.
3.
The father forthwith do all acts and things necessary to obtain orders in the same proceedings in which the Brazilian Order was made which provides that, until a court in Brazil makes orders to the contrary:
a. The child live with the mother;
c) The father have no access or contact with the child by direct or indirect or electronic means without the prior written consent of the mother, and for the avoidance of doubt, this applies where the child is in Australia or Brazil or in transit;
d) The father not approach within 50m of the child and/or the mother or within 50m of the premises at which the child and/or the mother live, work or attend for day care or kindergarten, whether in Australia or Brazil;
e) Neither the mother nor the father cause, permit or suffer the removal of the child from Brazil without the prior written consent of the other;
f) The mother and the father be each restrained from causing, permitting or suffering any proceedings to which the other party is a party to be initiated, issued, re-activated or prosecuted;
i) Otherwise than on notice to the other party; and
ii) Which requires the other party to attend or appear at court and/or prepare documents for a period of 4 weeks following the return of the child to Brazil.
g) The father forthwith do all acts and things necessary to obtain a Brazilian passport or other travel document or permission for the child in order to facilitate the return of the child to Brazil and the mother do all acts and things necessary and required of her to authorise, consent to and support the father’s application for the passport or other travel document or permission for the child’s travel;
h) The father book, and pay, or cause to be paid, the cost of return airfares for the mother and the child to return to Brazil, via the United States of America or on such other route as contemplates the disembarkation of the child and the mother only in countries for which the 1980 Hague Abduction Convention has entered into force with Brazil. The date for travel be not less than 30 days after the prosecuting Victorian State Central Authority has provided copies of this Order to:
iii) The mother’s legal representative – …
iv) The Independent Children's Lawyer – …
v) The Associate to the judge seized of the Hague proceedings in Australia – …
i) The mother reimburse the father for such travel costs within 30 days of the return of the child to Brazil;
j) Upon the arrival of the child in Brazil, the mother cause any passport issued to the child to be delivered to a registrar in a court in Brazil for safekeeping pending further order of the court in Brazil;
k) To verify the return of the child to Brazil the mother notify her solicitor, the Independent Children's Lawyer and the applicant State Central Authority in writing that the child has arrived safely in Brazil and do so within 4 hours of disembarkation of the child in Brazil by email to the addresses set out in paragraph (g) above.
Provisions to secure return
4.
The mother do all acts and things necessary and required to support and facilitate the father obtaining orders from a court in Brazil as provided by paragraphs 2 and 3 of this Order including, but not limited to, providing her consent to such orders being made.
5.
The father forthwith do all acts and things necessary to obtain a Brazilian passport or other travel document or permission for the child in order to facilitate the return of the child to Brazil and the mother do all acts and things necessary and required of her to authorise, consent to and support the father’s application for the passport or other travel document or permission for the child’s travel.
6.
Forthwith upon receipt, the applicant State Central Authority send or otherwise provide the passport, other travel document or evidence of travel permission to the Independent Children's Lawyer for safe keeping and provide a copy to the mother’s solicitors and the Independent Children's Lawyer make arrangements for delivery of the passport, other travel document or evidence of travel permission to the mother to facilitate the return of the child to Brazil.
7.
Upon compliance with paragraph 2 and 3 the application State Central Authority provide a copy of the orders as issued by the court in Brazil to:
a. The mother’s legal representative – …
b. The Independent Children's Lawyer – …
c. My Associate – …
8.
Once the father has complied with paragraph 2 and 3 of this Order, the father book, and pay, or cause to be paid, the cost of return airfares for the mother and the child to return to Brazil via the United States of America.
9.
To the extent that it is possible to do so, the mother not cause permit or suffer either herself or the child to pass through immigration in the United States of America, en-route to Brazil, and/or to leave the international terminal.
10.
The mother reimburse the father for the cost of the airfares for herself and the child within 30 days of the return of the child to Brazil.
11.
The airfares be booked for travel from Australia not less than 30 days after compliance by the State Central Authority with paragraph 7 of this Order.
12.
In addition to paragraph 7 of this Order, immediately on purchasing the airfares the father provide evidence of same and details of travel to the Independent Children's Lawyer. The Independent Children's Lawyer notify the parties of the booking and provide tickets to the mother and copies of tickets and payment to the State Central Authority.
13.
The State Central Authority (through the Australia Central Authority) conduct a movement records search to confirm the child’s offshore status after the child has departed Australia. The State Central Authority (through the Australian Central Authority) seek a Brazilian Central Authority confirmation that the child has landed in Brazil.
Continuing injunctions
14.
The mother forthwith notify the applicant State Central Authority and the Independent Children's Lawyer in the event that she will not accompany the child back to Brazil.
15.
Pending the child’s departure from Australia for return to Brazil:
(a) The respondent mother by herself, her servants and/or agents continue to be restrained and an injunction issue restraining her, her servants and/or agents from causing or permitting or suffering the child, X born … 2016:
(i) To be removed from the Commonwealth of Australia and in this regard all officers of the Australian Federal Police be directed to enforce, if required, the provisions of such order;
(ii) To be removed from the State of Victoria; and/or
(iii) To reside at any place other than her present residential address or any other residence at which the applicant has agreed that the child may reside.
(b) A representative of Department of Health and Human Services (“DHHS”), Victoria be and is hereby entitled to contact the mother, visit the child’s residence and/or require the mother to attend with the child at a specified office of DHHS.
16.
The Australia Federal Police retain the name of the child X, female, born … 2016 on the airport watch list enforced at all points of arrival and departure in the Commonwealth of Australia until a letter from an officer of DHHS, State Central Authority is received advising of the travel arrangements made for the child’s return to Brazil from 12.00am on the date nominated for the said travel.
17.
All and any watch list orders or orders restricting the movement of the child in Australia be and are hereby discharged upon the presentation of the child for boarding the flight as advised in the preceding paragraph of this Order.
18.
IT IS DIRECTED that a sealed copy of this Order be provided forthwith by my Associate to the Marshal of the Family Court of Australia, the Commission of the Federal Police and Police Forces and Services of the States and Territories of the Commonwealth of Australia and the Secretary of the Commonwealth Department of Foreign Affairs and Trade.
19.
The Marshal of the Family Court of Australia and the Commissioner and all Federal Agents of the Australia Federal Police and Officers of the Police Forces and Services of the States and Territories of the Commonwealth of Australia are requested and empowered to take all necessary steps to give effect to this Order.
Other matters
20.
The translation of the evidence of the Family Consultant Ms J be annexed hereto.
21.
There be liberty to apply on short notice in relation to the implementation of this Order and variation, discharge and amendment of the machinery provisions of this Order (being all provisions apart from paragraph 1 of this Order).
22.
The mother, father and any lawyer, representative or advocate appointed to act on behalf of the child or to represent the interests of the child in Brazil be and is hereby at liberty to use these reasons for decision, this Order and documents filed or exhibited in this Hague return proceeding in any parenting proceeding concerning the child in Brazil but not otherwise. For the purpose of ensuring that any documents sought to be relied upon in Brazil is an accurate and complete copy of the original, an officer of a court in Brazil which is seized of the parenting matter may request my Associate, … to provide a copy of any document in this proceeding by email AND IT IS DIRECTED that my Associate provide same.
23.
The application of the State Central Authority filed 13 February 2019 be otherwise dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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