State Central Authority & Usinov - [2008] FamCA 257

FAMILY COURT OF AUSTRALIA

STATE CENTRAL AUTHORITY & USTINOV

[2008] FamCA 257

FAMILY LAW – CHILD ABDUCTION – Hague Convention – children brought to Australia from Bulgaria by father – whether children habitually resident in Bulgaria prior to removal – father contended residence in Bulgaria only temporary – shared intention of parties – whether mother had “rights of custody” and exercising such rights – objections of children aged 7 and 9 – findings of Family Consultant – consideration of age and maturity level of children – objection of children beyond mere expression of preference or ordinary wishes – appropriate to take account of children’s view – whether grave risk to children if returned – provisions of reg 16(3)(b) not established – removal wrongful – not appropriate to exercise discretion to refuse to order return – Order: children to be returned – father to be given opportunity to arrange for children to attend psychologist prior to return.

Family Law Act 1975 (Cth) s 111B
Family Law (Child Abduction Convention) Regulations 1986 Reg 16(1), 16(1A) & 16(3)

Gazi and Gazi (1993) FLC 92-341
Panayotides and Panayotides (1997) FLC 92-733
Cooper and Casey (1995) FLC 92-575
Re B (Minors) (Abduction) (No 2) (1993) 1 FLR 993
State Central Authority v McCall (1995) FLC 92-552
Department of Health and Community Services, State Central Authority v Casse (1995) FLC 92-629
S v S (Child Abduction) (Child’s Views) (1992) 2 FLR 492
Re R (Child Abduction) (1995) 1 FLR 716
Director- General, Department of Families, Youth and Community Care v Thorpe (1997) FLC 92-785
Director- General, Department of Community Services v M and C (1998) FLC 92-829
Agee and Agee (2000) FLC 93-055
J & The Police Commissioner of SA and Children’s Representative (2001) FamCA 384 (unreported)

DP v Commonwealth Central Authority; JLM v Director- General, NSW Department of Community Services (2001) FLC 93-081

APPLICANT:

State Central Authority

RESPONDENT:

Mr Ustinov

FILE NUMBER:

ADC

4796

2007

DATE DELIVERED:

17 April 2008

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Dawe J

HEARING DATE:

27 February 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Olsson

SOLICITOR FOR THE APPLICANT:

Crown Solicitor's Office

COUNSEL FOR THE RESPONDENT:

Mr McQuade

SOLICITOR FOR THE RESPONDENT:

Lempriere Abbott McLeod

Orders

That the question of the orders to be made is adjourned to Tuesday 22 April 2008 at 9.15 am before The Honourable Justice Dawe for final orders.
That the existing orders do continue during the period of the adjournment.

IT IS NOTED that publication of this judgment under the pseudonym State Central Authority v 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

State Central Authority

Applicant

And

Mr Ustinov

Respondent

REASONS FOR JUDGMENT

Introduction

Upon application filed on the 7 September 2007 the Commissioner of Police, South Australia as the State Central Authority applied for orders pursuant to the Family Law (Child Abduction Convention) Regulations 1986 seeking the return of the two children…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] FamCA 257
Decision Date: 17 April 2008

CaseChat Overview and Summary

The case of State Central Authority & Usinov involved an application for the return of children to Bulgaria under the Hague Convention. The father had brought the children to Australia, and the mother, through the State Central Authority, sought their return. The central dispute concerned whether the children were habitually resident in Bulgaria prior to their removal and whether the mother had rights of custody that were being exercised. The court was required to determine if the removal was wrongful, if the children objected to their return, and if there was a grave risk to them if returned.

The court considered the legal issues of habitual residence and the mother's rights of custody and their exercise. It was necessary to assess whether the father's contention that their residence in Bulgaria was only temporary was valid, and whether the parties shared an intention regarding the children's upbringing and residence. Furthermore, the court had to evaluate the objections of the children, aged seven and nine, considering their age and maturity, and whether these objections went beyond mere preference. The court also had to determine if any grave risk existed for the children upon their return to Bulgaria, and whether the conditions under Regulation 16(3)(b) of the Family Law (Child Abduction Convention) Regulations 1986 were met.

Justice Dawe found that the mother possessed rights of custody under Bulgarian law, which are characterised by unity between rights and obligations, requiring joint parental decision-making. The court was satisfied that the mother was exercising these rights, as evidenced by the children spending weekends with her immediately prior to their removal. The father's argument that the mother had not taken legal proceedings to enforce her rights was rejected. The court also considered the children's objections, noting that their views were appropriate to take into account given their age and maturity, but ultimately found that the father had not established that the children's objections demonstrated a strength of feeling beyond ordinary wishes, nor had he established a grave risk to the children.

The court ordered that the children be returned to Bulgaria, finding that their removal was wrongful. The father was granted an opportunity to arrange for the children to attend a psychologist prior to their return. The question of final orders was adjourned to a later date.

Orders

Orders of the court

That the question of the orders to be made is adjourned to Tuesday 22 April 2008 at 9.15 am before The Honourable Justice Dawe for final orders.

That the existing orders do continue during the period of the adjournment.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Part of that opinion contains the following statements:“The most essential characteristic of the parental rights is the unity between rights and obligations. E.g., there is no allocation between both parents of who shall be responsible for what, and both of them have to raise, bring up, control, represent, encourage, etc., their underage and under the age of majority children.…It is not allowed one of the parents to make a unilateral decision on how the children shall be raised and brought up, where they shall live and get education, who shall take care of them and prepare them for life.When there is an argument between the parents regarding the implementation of their rights and obligations, competent to rule shall be the respective district court.” (My underlining). I am satisfied therefore that the mother had rights of custody immediately prior to the children’s removal from Bulgaria. Counsel for the father emphasised the requirement that the Court must find that not only did the mother have rights of custody but that she was actually exercising the rights of custody (either jointly or alone) as required by Regulation 16(1A) (e) (i) at the time of the children’s removal. On behalf of the father it was asserted that the mother was not exercising her rights. The children were residing with the father and his mother Monday to Friday and living with the mother and father on weekends. The father maintained that the mother was not exercising her rights of custody because she had not taken any proceedings to enforce those rights. He also asserted that there was no evidence to indicate that the parties had made a joint decision that the children would live with the father and visit the mother on weekends. I am not satisfied that it is necessary to establish that the mother had brought proceedings to enforce her rights before she could be described as “exercising those rights”. The law of Bulgaria provided that decisions about the residence of the children should be made by both parents and if they are unable to agree then an appropriate Court is to make the decision. The mother was also exercising her rights of custody to the extent that immediately prior to their removal the children were living with the mother on some weekends. I am satisfied that the evidence establishes that the mother had rights of custody under the Bulgarian law and was exercising those rights immediately prior to their removal. As previously indicated there are difficulties in relation to the application of the provisions of the Bulgarian legislation dealing with Bulgarian Identity Documents Act (Article 76) and the Foreigners in the Republic of Bulgaria Act (Article 43). However, in view of the interpretation I have made of the provisions of the Family Code it is unnecessary to decide whether the mother had the right of veto which would establish rights of custody. Regulation16(3)(c) provides that the Court may refuse to order the return of the children if the father, being the person opposing the return, establishes that:“(c)each of the following applies: (i)the child objects to being returned; (ii)the child's objection shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes; (iii)the child has attained an age, and a degree of maturity, at which it is appropriate to take account of his or her views; “

Ratio Decidendi

Legal Principle Established

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