FAMILY COURT OF AUSTRALIA
| STATE CENTRAL AUTHORITY & USTINOV (NO. 4) | [2008] FamCA 987 |
| FAMILY LAW – CHILD ABDUCTION – HAGUE CONVENTION – where children brought to Australia from Bulgaria by father – where return of children previously ordered – where father’s appeal to Full Court unsuccessful – application for discharge of return order pursuant to regulation 19A of Family Law (Child Abduction Convention) Regulations 1986 – whether impracticable for order to be carried out – whether there are exceptional circumstances justifying discharge of return order – provisions of regulation 19A not met. FAMILY LAW – CHILD ABDUCTION – Hague Convention – application seeking a stay of the orders for the return of the children pending the hearing of the father’s application for special leave to appeal to the High Court – stay refused. |
| Family Law (Child Abduction Convention) Regulations 1986 regs 16 & 19A MW v Director‑General, Department of Community Services (2008) 39 Fam LR 1 |
| APPLICANT: | Commissioner of Police, South Australia, as State Central Authority |
| RESPONDENT: | Mr Ustinov |
| FILE NUMBER: | ADC | 4796 | of | 2007 |
| DATE DELIVERED: | 10 November 2008 |
| PLACE DELIVERED: | Adelaide |
| JUDGMENT OF: | Dawe J |
| HEARING DATE: | 10 November 2008 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr M.G. Hinton QC, with Ms J.G. Olsson |
| SOLICITOR FOR THE APPLICANT: | Crown Solicitor's Office |
| COUNSEL FOR THE RESPONDENT: | Mr M.G. Pickhaver |
| SOLICITOR FOR THE RESPONDENT: | Rob Ellis, Solicitor |
Orders
Until the 18 November 2008 paragraphs 1 and 2 are continued of the order made by the Honourable Justice Dawe on 27 October 2008.
The Court amends the order of the 22 April 2008 as varied by the order of the Honourable Justice Burr of 17 September 2008 to provide that the children be returned on or before the 18 November 2008.
The husband present the children to the wife at the Adelaide International Airport no later than 10.00 am on the 18 November 2008.
Pursuant to regulation 31 of the Family Law Act (Child Abduction Convention) Regulations 1986 a warrant do issue authorising the taking possession of the children A born on the … September 1998 and M born on the … May 2000 and such persons recovering the children are to deliver the children to the mother at the Adelaide International Airport in the State of South Australia that day, namely the 18 November 2008.
That the warrant be stayed until 10.00am on 18 November 2008.
The passports of the children be released to the mother upon the mother producing evidence of her identity.
The order placing the children’s names on the Airport Watch List (PACE) be varied to permit the children to leave Australian PROVIDED THAT they are in the company of the mother.
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… |
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- AGLC
- State Central Authority & Ustinov (No. 4) [2008] FamCA 987
- Case
- [2008] FamCA 987
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the conditions stipulated in regulation 19A of the Family Law (Child Abduction Convention) Regulations 1986 were met, specifically whether it was impracticable for the existing return order to be carried out or if exceptional circumstances existed that would justify its discharge. Additionally, the court considered an application by the father for a stay of the return orders pending his application for special leave to appeal to the High Court.
Dawe J found that the provisions of regulation 19A were not met, meaning the threshold for discharging the return order was not satisfied. The court also refused the father's application for a stay of the return orders. Consequently, the court amended the existing orders to specify a new return date of 18 November 2008, requiring the husband to present the children to the wife at Adelaide International Airport by 10:00 am on that day. A warrant was issued authorising the taking possession of the children and their delivery to the mother at the airport on that date, with the warrant stayed until 10:00 am on 18 November 2008. The children's passports were to be released to the mother upon proof of identity, and the Airport Watch List order was varied to permit the children's departure from Australia only in the company of the mother.
Orders
Orders of the court
1.
Until the 18 November 2008 paragraphs 1 and 2 are continued of the order made by the Honourable Justice Dawe on 27 October 2008.
2.
The Court amends the order of the 22 April 2008 as varied by the order of the Honourable Justice Burr of 17 September 2008 to provide that the children be returned on or before the 18 November 2008.
3.
The husband present the children to the wife at the Adelaide International Airport no later than 10.00 am on the 18 November 2008.
4.
Pursuant to regulation 31 of the Family Law Act (Child Abduction Convention) Regulations 1986 a warrant do issue authorising the taking possession of the children A born on the … September 1998 and M born on the … May 2000 and such persons recovering the children are to deliver the children to the mother at the Adelaide International Airport in the State of South Australia that day, namely the 18 November 2008.
5.
That the warrant be stayed until 10.00am on 18 November 2008.
6.
The passports of the children be released to the mother upon the mother producing evidence of her identity.
7.
The order placing the children’s names on the Airport Watch List (PACE) be varied to permit the children to leave Australian PROVIDED THAT they are in the company of the mother.
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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