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

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:

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

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.

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

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.
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.
The proceedings were filed in this Court…

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.

Continue reading State Central Authority & Ustinov (No 2)

Details

AGLC: State Central Authority & Ustinov (No 2) [2008] FamCA 368
Case: [2008] FamCA 368
Decision Date: 30 April 2008

CaseChat Overview and Summary

This matter concerned an application for urgent interlocutory relief by the State Central Authority, acting on behalf of the Republic of Kazakhstan, against the father of two children, A and M. The application sought to stay the operation of orders made by Dawe J on 22 April 2008 and to restrain the father from removing the children from South Australia and/or Australia, and to place their names on the Airport Watch list.

The primary legal issue before the court was whether to grant an interlocutory injunction to prevent the potential international abduction of the children pending the determination of an appeal against the earlier orders of Dawe J. This involved assessing the balance of convenience and the likelihood of irreparable harm to the children and the applicant's ability to enforce any future orders.

The court granted the interlocutory relief sought. It reasoned that the potential for the children to be removed from Australia, thereby frustrating the applicant's ability to seek their return under international conventions, constituted a sufficient risk of irreparable harm. The court considered that the balance of convenience favoured the granting of the injunction, as the potential harm to the applicant and the children if the injunction were not granted outweighed any inconvenience to the father.

Accordingly, the court ordered a stay of paragraphs 1 to 7 of the orders of Dawe J made on 22 April 2008. It further granted an injunction restraining the father from removing the children from South Australia or Australia, and directed the Australian Federal Police to place the children's names on the Airport Watch list until further order.

Orders

Orders of the court

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

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

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.

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.

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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