State Central Authority & Ustinov (No 2)

[2008] FamCA 368

FAMILY COURT OF AUSTRALIA

STATE CENTRAL AUTHORITY & USTINOV (NO. 2) [2008] FamCA 368

FAMILY LAW – PRACTICE AND PROCEDURE – stay of proceedings pending appeal - Orders for the prompt return of two children to Bulgaria pursuant to Hague Convention – stay application granted.

Family Law Act 1975 (Cth)

EJK and TSL (No 2) (2006) 35 Fam LR 590
Clemett and Clemett (1981) FLC 91-013
JRN & KEN v IEG & BLG (1998) 72 ALJR 1329

APPLICANT: COMMISSIONER OF POLICE SOUTH AUSTRALIA  AS STATE CENTRAL AUTHORITY

RESPONDENT: MR USTINOV

FILE NUMBER: ADC 4796 of 2007

DATE DELIVERED: 30 April 2008

PLACE DELIVERED: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 30 April 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Olsson

SOLICITOR FOR THE APPLICANT: Crown Solicitor's Office

COUNSEL FOR THE RESPONDENT: Mr J.G. McGinn

SOLICITOR FOR THE RESPONDENT: Lempriere Abbott McLeod

Orders

IT IS ORDERED PENDING THE HEARING AND DETERMINATION OF THE APPEAL FROM THE ORDERS OF THE HONOURABLE JUSTICE DAWE OF 22 APRIL 2008 THAT:

1. The operation of paragraphs 1 to 7 inclusive of the orders of the Honourable Justice Dawe made on 22 April 2008 be stayed.

1. The father is restrained and an injunction is hereby granted restraining him from removing and/or causing or allowing the children A born … September 1998 and M born … May 2000 to be removed from the State of South Australia and/or the Commonwealth of Australia.

1. The Australian Federal Police place the names of the said children on the Airport Watch list (PACE) in force at all points of arrival and departure in the Commonwealth of Australia and maintain the said children’s names on the Airport Watch list (PACE) until further order of the Court.

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 AS STATE CENTRAL AUTHORITY

Applicant

And

MR USTINOV

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This is the hearing of the application in a case brought by the father, being the application filed on 28 April 2008, in which it is sought that there be an order staying the operation and enforcement of the orders that I made on 22 April 2008.  The history of the matter is set out in detail in my judgment which was delivered on 17 April 2008.

2. The orders were made in proceedings between the State Central Authority, the Commissioner of Police for South Australia, brought on behalf of the Central Authority in relation to an application for the return of two children to Bulgaria.  The children concerned are A, who was born in September 1998, and M, who was born in May 2000.  The application was brought by the Central Authority on the initial application of the mother in Bulgaria for the return of the two children to that country.

3. The proceedings were filed in this Court on 7 September 2007.  I delivered my reasons on 17 April and indicated to the parties that there were proposed orders.  The matter was adjourned briefly whilst consideration was given to those proposed orders, which were then made by me on 22 April 2008.  The orders provide for the children to be promptly returned to Bulgaria.

4. The stay application has been listed urgently before me, not the least because the actual orders that I made provided for steps to be taken which included ensuring that the children were returned to Bulgaria on or before 12 May 2008.

5. In support of the application for stay I have received an affidavit to which is annexed a copy of the notice of appeal which has been filed, and an affidavit of the solicitor for the father, indicating that the appeals registrar has indicated that any appeal would be heard at the latest in Melbourne in the first half of July 2008.

6. The principles which govern the consideration of the grant of a stay pending an appeal have been discussed in many cases.  I have been referred to the case of the Full Court of the Family Court in EJK and TSL (No 2) (2006) 35 Fam LR 590, in which the Full Court referred to the principles discussed in other significant cases such as Clemett and Clemett FLC (1981) 91-013 and JRN & KEN v IEG & BLG (1998) 72 ALJR 1329.  The summary of those matters refers to the welfare of the child being the paramount consideration, and referring to the best interests test.

7. This is an appeal from a decision of a judge of the Family Court determining a matter in relation to an application brought by the Central Authority pursuant to the Regulations in relation to the Hague Convention. As such it is not an appeal in relation to a children's case under Part VII of the Family Law Act.

8. However, many of the relevant legal principles clearly still apply.  The Court would always, in a matter concerning the welfare of children, take into account as one of the factors the welfare of the children.  In particular, the Court should give consideration in this particular matter to the principles set out in the objects in the articles of the Hague Convention which emphasise the protection of children and the respect to be given to the appropriate rules concerning the best interests of children.

9. The Court needs to take into account whether the appeal is an appeal that has been brought promptly and without delay.  There is absolutely no doubt in this case that that has been the case.  The appeal has already been filed, although my orders are only dated 22 April.  The appeal can be dealt with promptly.  The affidavit of the solicitor for the father indicates that, at the latest, the appeal should be heard in the first half of July this year.

10. Other conditions relate to the question whether the appeal raises serious issues and that the grounds appear to be substantial rather than merely a delaying tactic.  To that extent, the notice of appeal sets out a significant number of grounds of the appeal, but I have had the assistance of counsel for the father in a summary of those grounds of appeal.

11. The first relates to the interpretation of the facts so far as the issue of establishing habitual residence is concerned, the second is the question of the exercise of discretion in relation to Regulation 16 so far as it impacts upon the children's objections to being returned, and the third is the issues arising out of the provisions of the regulations which relate to grave risk.

12. In making a determination of the likely success of the grounds of appeal, it is often difficult for the judge at first instance who has made the decision to then review their own decision when considering the stay.

13. It is difficult for a judge at first instance who has made the decision, taking into account what the judge considered to be the relevant facts and applicable law, to then assess objectively the merits of an appeal from her decision.  However, even understanding that difficulty, it is a task which I am required to perform.  I am not, however, required to rate the grounds of appeal and comment upon the likely success or otherwise of each of the grounds of appeal.  Suffice it to say that I believe it is necessary for me to be convinced that there is some merit to the grounds of the appeal and that the application by the appellant is bona fides.

14. Taking into account the complexity of the matters which were required to be decided in this matter, I am satisfied that the grounds of appeal have sufficient merit to warrant the consideration of the stay.

15. One of the most significant factors in this application for a stay is whether, if the stay were not granted, the appeal would be rendered nugatory.  In this case, the orders which I have made provide for the immediate return of the two children to Bulgaria.  If the stay were not granted, then the appeal would be rendered nugatory because the whole purpose of the application was for the order to be made sending the children back to Bulgaria. 

16. The orders I made did not determine with whom the children were to reside or what was in their best interests so far as parenting arrangements were concerned; rather, the orders were made under the Hague Convention Regulations for the return of the children to Bulgaria.

17. I am also required to consider whether the present circumstances of the children are satisfactory.  The evidence before the Court in the hearing at first instance included a report from the family consultant, which indicated that the children's arrangements were satisfactory.

18. I am also required to balance the hardship likely to be suffered by each of the parties, weighing up whether a stay should be granted or not.  The hardship to the State Central Authority is not a significant factor in any way.  The hardship to the mother is the ongoing delay in having the considerations about the best interests of the children determined in the appropriate forum.  However, I have to consider the hardship which might arise if the stay were not granted.

19. I take into account, not as the paramount consideration, factors in relation to the children's best interests and their welfare.  If the appeal is heard expeditiously and a determination made by the Full Court in an appropriate way, then the orders can be made which will bring a conclusion to the Hague Convention proceedings.

20. Weighing all of the factors concerned it is appropriate in these circumstances to exercise my discretion to grant the stay.

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

Associate:

Date:  23 May 2008