State Central Authority & Ustinov (No. 4)
[2008] FamCA 987
•10 November 2008
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 POLICE, SOUTH AUSTRALIA |
Applicant
And
| MR USTINOV |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application by the father, Mr Ustinov, pursuant to regulation 19A of the Family Law (Child Abduction Convention) Regulations 1986. The regulations are made pursuant to the provisions of the Family Law Act 1975 (Cth). Specifically, regulation 19A allows the Court to discharge an order. Regulation 19A provides:
(1)If a court makes a return order, the responsible Central Authority, the Article 3 applicant or a respondent to the proceeding may apply to the court, in accordance with Form 2D, for the discharge of the order.
(2)The court may make an order discharging a return order, or a part of a return order, only if it is satisfied that:
(a) all the parties consent to the return order being discharged; or
(b)since the return order was made, circumstances have arisen that make it impracticable for the order to be carried out; or
(c)exceptional circumstances exist that justify the return order being discharged; or
(d)the day on which the application for the discharge of the return order was made is more than 1 year after the return order was made or any appeal in relation to the return order was determined.
Specifically, the particular provisions of regulation 19A(2) that apply in this case are subregulations (b) and (c); namely, issues in relation to whether it is impractical for the order to be carried out or whether there are exceptional circumstances which justify the return order being discharged.
In this particular case the return order was made by me on 22 April 2008, following a judgment which was delivered on 17 April 2008. At the hearing before me in relation to the original application for the return order, the father was represented by counsel and the Central Authority was represented by counsel.
The application concerns the return of two children of the respondent father and the mother; A, who was born in September 1998, and M, who was born in May 2000.
Background
The background and summary facts in the original reasons for judgment set out the history of the relationship between the parties and the children and the removal of the children from Bulgaria, where they had been residing for approximately two years.
The children arrived in Adelaide on 3 July 2007. They have been in Adelaide since in the care of the father and with the assistance from time to time of his mother.
Hearing
At the hearing today before me, the father was represented by Mr Pickhaver of counsel and the Central Authority by Mr Hinton QC with Ms Olsson. The father relies on his affidavit material filed before the conclusion of the original application for the return order, being the affidavit sworn on 10 October 2007, and subsequently three affidavits filed in September 2008 and October 2008, the report of Mr R and his evidence in cross-examination before me at the original hearing for the return order and the subsequently obtained reports of Mr Q, a psychologist, and Dr W, a general practitioner with some experience in psychology, which are attached to the affidavits of Mr Adey, who was then the solicitor for the father. The father also relies upon the report of a Bulgarian social worker, dated 27 March 2007, which was also before me at the hearing in relation to the original return order sought by the Central Authority.
At the hearing before me today the father requested, and was granted, leave to adduce further oral evidence from Mr Q who was cross-examined. The mother has also arrived from Bulgaria since the orders were made by me in April 2008. She was also given leave to give oral evidence and was cross‑examined.
Discussion
The context of the Convention proceedings needs to be taken into account, and I was referred to the decision of the High Court of Australia in MW v Director‑General, Department of Community Services (2008) 39 Fam LR 1. Paragraphs 59 to 65:
“59. A recent discussion of the provenance and mixed objectives of the Convention contains the following:33
The aims of the Convention are distilled from a number of fundamental principles that featured prominently during the negotiation of the Convention and led to its wide acceptance. These are that the interests of children are paramount in cases of child abduction; that it is generally contrary to the best interests of any child to be abducted; and that it is the courts of habitual residence (normally the home environment of the child) that are generally best placed to decide on the future upbringing of the child. So the Convention seeks to restore the child’s status quo in order both to reduce the incidence of international child abduction through the provision of legal rules which effectively mean there is nothing to be gained by abducting this child, and to ensure that the decision on the future of the child is taken in the forum conveniens, ie, the most appropriate jurisdiction to make such a determination. [Footnote omitted.]
60. The distinction between the exercise of jurisdiction founded in legislation adopting the Convention and the wardship jurisdiction was identified by Baroness Hale of Richmond in Re M 34 as follows:
[41] … In non-Convention cases the child’s welfare may well be better served by a prompt return to the country from which she was wrongly removed; but that will be because of the particular circumstances of her case, understood in the light of the general understanding of the harm which wrongful removal can do …
[42] In Convention cases, however, there are general policy considerations which may be weighed against the interests of the child in the individual case. These policy considerations include, not only the swift return of abducted children, but also comity between the contracting states and respect for one another’s judicial processes. Furthermore, the Convention is there, not only to secure the prompt return of abducted children, but also to deter abduction in the first place. The message should go out to potential abductors that there are no safe havens among the contracting states.
61. It was against this background that the court held in De L35 that proceedings under the Regulations are not subject to the paramountcy principle which was then expressed in s 64 of the Act.
62. Nevertheless, in Re M36 the House of Lords disagreed with authorities indicating that a Convention case must be “exceptional” before the court might properly decide to refuse to make an order for return. In the circumstance of the case before it, the House held that “children should not be made to suffer for the sake of general deterrence of the evil of child abduction world wide”37 and dismissed the Convention application by the father of the children.
63. In the present litigation, it was recorded by the primary judge to be common ground that while the best interests of the child were not paramount in determining whether an order for return should be refused on one or more of the grounds in reg 16(3),38 those best interests were a factor in that decision-making process.39
64. The appeal to this court does not turn upon the identification of the best interests of the child in the sense indicated by the primary judge. This is so although much of the affidavit evidence in support of the appellant’s case does appear to have been prepared with a view to attracting the exercise of the discretion under reg 16(3) in favour of refusal of return of the child to New Zealand, if, as proved to be the case, she failed upon the threshold issue of jurisdiction. The appeal does turn on that threshold issue.
65. While, as remarked above, the mere presence of the child might found the exercise of the wardship jurisdiction or that under Pt VII of the Act, the operation of the regime for which the Regulations provide is attracted by more complex criteria. These threshold matters fix upon the timing of the application, and the satisfaction of the court that the child’s removal or retention was “wrongful”. It is with the latter criterion that the appeal is concerned.” (Footnotes omitted)
The specific grounds for the discharge of the return order do not refer to the best interests of the children, but in applying the regulations, and in particular when determining exceptional circumstances or whether something is impracticable, it is appropriate to consider the interests of the children concerned in establishing whether exceptional circumstances exist that justify the return order being discharged, or indeed whether circumstances have arisen which make it impractical for the order to be carried out.
The Court must consider the meaning of the word "impracticable" and phrase "exceptional circumstances". I rely upon the ordinary meaning of the words, as there is nothing in Regulation 19A which suggests that they have any particular meaning other than their usual meaning. I accept that "exceptional circumstances" requires the finding of something unusual or something in the nature of exception and that the word "impracticable" requires something which makes it unmanageable or unable to be carried out.
On the definition of exceptional circumstances, I have been referred to the decision of Ho v Professional Services Review Committee No 295 [2007] FCA 388 in the Federal Court of Australia. At paragraph 25 Rares J states:
“25. And, in Baker v The Queen [2004] HCA 45; (2004) 223 CLR 513 at 573 [173] Callinan J referred with approval to what Lord Bingham of Cornhill CJ had said in R v Kelly (Edward) [2000] QB 198 at 208, namely:
‘We must construe "exceptional" as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.’”
I have before me the judgment of April this year and the findings made then. In particular, I refer to the section of the judgment in which consideration was given to the views of the children. I was then satisfied that the children's objections to returning to Bulgaria were of sufficient strength that they are beyond mere preference or ordinary wish, and took into account the evidence of the family consultant that they had reached an age and maturity which makes it appropriate to take account of their views. (Paragraph 113)
The summary and conclusions of that judgment stated:
“137. There are significant factual issues in dispute between the mother and father (such as the conditions in which the children resided in Bulgaria, their treatment at school, the violence between the mother and father and who was responsible for it and violence between the mother and paternal grandmother and who was responsible for it). Those matters will need to be determined by the appropriate authority before a final decision is made about the permanent living arrangements for the children.
138.I am satisfied that the Central Authority has established that the children were habitually resident in Bulgaria before their removal. Bulgaria is a Convention country and each child is under 16.
139.The Central Authority has established that the children’s mother had rights of custody according to the law of Bulgaria immediately before the children’s removal and that she was exercising those rights of custody.
140.The children’s removal from Bulgaria was in breach of the mother’s rights of custody.
141.The application for the return of the children was made within one year of their removal.
142.The Central Authority has therefore established that the children’s removal from Bulgaria was wrongful.
143.Regulation 16(3) gives the Court a discretion to refuse to make an order if one of the conditions is established by the person opposing the return. In this particular case the father has established that the children object to being returned, that their objection shows a strength of feeling beyond the mere expression of a preference of ordinary wishes and that the children have attained an age and a degree of maturity at which it is appropriate to take account of their views.
144.The father has not established that there is a grave risk that the return of the children would expose them to physical or psychological harm or otherwise place the children in an intolerable situation.
145.The Regulation clearly provides that the Court may still order the return of the children notwithstanding that one of the conditions in Regulation 16(3) has been established. The discretion is clearly indicated by the use of the word “may” and by the specific provisions of sub-regulation (5).
146.The children are aged nine and seven and have been in the care of their father ever since they left Bulgaria in late June 2007. Whilst the children’s wishes should be taken into account, their wishes need to be considered in the context of this particular case and not necessarily given decisive weight.
147.The father is in a position to ensure that their return to Bulgaria can be undertaken in a way (with his support and encouragement) that the children will not suffer any long term effects and any short term difficulties can be overcome.
148.Taking into account the particular factors in this case and notwithstanding the objections of the children, it is not appropriate to exercise the discretion to refuse to order the return of the children. The order should be made for the return of the children to Bulgaria.
149.The father will be given an opportunity to arrange for the return of the children in his company and a brief time to take the children to a suitable qualified child psychologist of his choosing to assist him in reducing the psychological impact of the return to Bulgaria.
150.If the father is unable to or unwilling to take the children to therapy and to make arrangements for the children to return to Bulgaria in his care, then appropriate orders should be made to ensure that the children are nonetheless returned. Suitable notice should be given to the Bulgarian authorities to request the protection of the children and prompt resolution of any dispute between the parents concerning the care of the children in Bulgaria.”
In particular, paragraphs 148, 149 and 150 took into account the objections of the children and that the father would be given an opportunity to arrange for the return of the children in his company, and a brief time to take the children to a suitably qualified child psychologist of his choosing, to assist him in reducing the psychological impact of the return to Bulgaria.
Paragraph 150 said:
“If the father is unable to or unwilling to take the children to therapy and to make arrangements for the children to return to Bulgaria in his care, then appropriate orders should be made to ensure that the children are nonetheless returned. Suitable notice should be given to the Bulgarian authorities to request the protection of the children and the prompt resolution of any dispute between the parents concerning the care of the children in Bulgaria.” (My emphasis)
The emphasis in those last few paragraphs of the judgment makes it clear that when the orders were made by me on 22 April 2008 (including orders which provided for a warrant to issue if the children had not been returned by 12 May 2008), that it was never intended that the return of the children should be subjected to successful therapy for the children and that the return order for the children was not made in any way dependent upon a successful therapy nor a successful change of the children's expressed views. The judgment and orders were made bearing in mind the children's views in relation to returning to the mother or Bulgaria.
Mr Pickhaver's submissions were that, because the attempt at therapy of the children was unsuccessful, then it has become impracticable to comply with that part of the order; namely, that the children have therapy.
The order that was made was not an order that required the children to have therapy or that required the children to have therapy which was successful. Rather, it was an order which allowed the father to have an opportunity to have the assistance of a psychologist, to explain to the children the father's need to comply with the Court orders and to assist the children in returning to Bulgaria.
The fact that the psychologist determined that therapy was not likely to change the children’s attitude does not make it impracticable for the order to be carried out.
The order to which regulation 19A(2)(b) refers is not any ancillary part of the order. Regulation 19A refers to the order for the return of the children to the Convention country. Because the therapy was not attempted does not make it impracticable for the return order to be carried out.
The submissions on behalf of the father also claimed it is impracticable to carry out the return order because the children are expressing a strong, definite wish not to be returned to Bulgaria, or are expressing strong opposition to any such arrangement. The children were, prior to the order being made, also expressing strong resistance to any order to return to Bulgaria and appear to have continued to express those views since the order was made.
I am therefore not satisfied that, since the return order was made, circumstances have arisen that make it impracticable for the order to be carried out.
The other major submission on behalf of the father is that exceptional circumstances now exist that justify the return order being discharged. This is based upon the evidence of the father that he does not now intend to, and will not, return to Bulgaria, either in the short term or the long term, and that the children have expressed to Mr Q and Dr W strong views about not returning to Bulgaria and not returning to the care of the mother.
The evidence of Mr Q, which is contained in his report, was as a result of at least one hour interviewing the children together in the absence of their father and subsequently interviewing them in the presence of their father. He has taken into account the report of Mr R and has read the judgments of the Court at first instance and the Full Court. He conducted a personality assessment inventory and parent-child relationship inventory in relation to the father and the children. He did not interview, and did not have any information directly from, the mother.
The arrangements were made to comply with the permission granted to the father in paragraph 7 of the order of 22 April 2008, which not only referred to a qualified child psychologist assisting the children but also to the psychologist explaining to the children the father's need to comply with the Court orders for their return to Bulgaria.
The report and the oral evidence of Mr Q indicates that he did not explain to the children the father's need to comply with the Court orders for their return to Bulgaria. His oral evidence, and his written report, suggest that he considered whether the provisions of regulation 16 of the Family Law (Child Abduction Convention) Regulations had been met. He specifically refers to the Child Abduction Convention Regulations and draws conclusions of his own about “grave risk” and the “strong objections” by the children to their return. In the second to last paragraph of page 2 of the report, Mr Q says:
“Even though I stated to the father that the Family Court documents and Jenny Olsson stated clearly the purpose of the children seeing a clinical psychologist was to prepare them for their return to Bulgaria, the father stated that he had had legal advice that, due to a change in circumstances, he could seek a change in the Court order.”
Much of the report of Mr Q sets out his view of the application of the Regulation 16 provisions which had already been determined by the Court.
The report of Dr W, and the report of Mr Q and his evidence, confirm that the children are expressing views similar to those they expressed to Mr R. It is now a longer period of time since the children have been in the care of the mother and an increasing period of time since they have been in the sole care of the father or his mother. There is no evidence before the Court that the children have been given any encouragement, support or direction by the father to permit him to comply with the orders of the Court for the return of the children to Bulgaria.
The mother's evidence given before me today is that the attitude and views of the children have been formed, as she described it, by brainwashing by the father.
The father has indicated to the Court that now he will not return to Bulgaria.
The principles to consider have been referred to by the High Court and include that the Convention exists to bring about the prompt return of children who have been removed from a Convention country improperly. The question of habitual residence and wrongful removal were considered by me in the judgment and have been the subject of unsuccessful appeal to the Full Court.
I therefore consider whether exceptional circumstances have arisen since the judgment which would justify the return order being discharged. The exceptional circumstances must be more than simply all emphasis on the attitude of the children and their strong views which were in existence when they were interviewed by Mr R before the return order was made.
Based on interviews with the father and the children, Mr Q has concluded that there is a grave risk because of the psychological harm to the children. This Court, however, took into account the strong views of the children and the evidence of Mr R and determined nonetheless that the risk was not such as to direct the Court not to order the return of the children.
The facts which have been established are that the children have been making strong statements to Mr R, Dr W and Mr Q. Mr Q’s evidence is that the statements they have made should not be interpreted as a real threat of suicide but do indicate a risk that the children might take steps to enforce their views.
The mother has given evidence that she already has in place arrangements in Bulgaria to assist the children on their return, even if their return is, as the father has indicated, not in his presence or with his assistance.
I am not therefore satisfied that the father has established a grave risk, which would be the foundation of exceptional circumstances. I am satisfied that the children continue to maintain their strong views which they have maintained since they have been interviewed about these proceedings, and it is likely that they will continue to maintain those strong views. That, however, does not in itself create an exceptional circumstance that would justify the return order being discharged.
The question of exceptional circumstances and whether it is impracticable also calls into question what role the father has played in endeavouring to comply with the Court orders. There is no evidence before the Court as to what steps, if any, the father has taken to comply with the orders. (He has brought the application to discharge and has sought to appeal the orders which are his right to do).
If the father does not return to Bulgaria to participate in proceedings already commenced by the mother, this may leave the children in Bulgaria in the care of the mother.
His decision not to return to Bulgaria, and the reasons that he gives for that decision not to return to Bulgaria, should not be an exceptional circumstance which would justify the order being discharged.
It may be exceptional that the father decides not to return to Bulgaria to contest any proceedings concerning the welfare of the children, but his decision and the reasons he gives for that decision, whilst exceptional, do not create an exceptional circumstance that would justify the discharge of the return order.
The correct interpretation of the Regulations, taking into account the purpose behind the Convention, do not bring about a situation where one party saying they would not return to the country of origin could bring about a circumstance which would justify the discharge of the order.
The children have expressed strong views, but taking into account the circumstances which have existed, particularly that the mother has not had frequent time with the children in the time they have spent in Australia with the father since their removal in July 2007, I am satisfied that the orders that were made in April, as amended in September, should not be discharged.
Therefore, the provisions of Regulation 19A have not been made out.
Stay
The father applies to stay the implementation of the orders for the return of the children pending the hearing of the application for special leave to appeal to the High Court.
This Court has the power to hear the application for a stay. There are no particular rules dealing with before whom an application for a stay should be listed following a decision of the Full Court.
Taking into account the material before the Court, both in relation to the original hearing and the decision of the Full Court of the Family Court, I am satisfied that I have the power to hear and determine the question of the stay. Using that inherent power, I need to take into account all of the appropriate factors. The application for a stay requires the Court to consider the various matters and balance the competing factors against each other when determining whether it is appropriate to exercise the discretion to order the stay.
In many circumstances an application for special leave would of itself be justification to order a stay. However, each matter must be considered on its own merits.
The application for special leave to appeal was filed in the High Court on 24 October 2008. That is an application which seeks that not only there be special leave to appeal but that the time be extended within which to file the application for special leave to appeal. My decision was made in April 2008 and the orders made on the 22 April 2008. The matter went to the Full Court of the Family Court of Australia, who gave judgment on 25 July 2008. It was not until 24 October 2008 that the application for special leave to appeal was filed.
When reciting that history of the dates, I also take into account that the children were removed from Bulgaria without the consent of the mother in July 2007, after which she brought prompt application through the necessary government bodies to bring about the application by the Central Authority to this Court, which was filed in September 2007. It is therefore over a year since the original application was made to the Family Court of Australia by the Central Authority for the prompt return of the children pursuant to the Hague Convention Regulations.
The subject matter of the litigation could therefore be described as the prompt return of the children. The application for a stay needs to be seen in the context of the time frame of this matter.
The other significant matter is whether there is a substantial prospect that special leave to appeal will be granted. The grounds set out in the application filed in the High Court on 24 October 2008 are recited in paragraph 4. The grounds are:
That the Full Court erred in not finding:
(a)that the mother and father were not habitually resident in Bulgaria immediately prior to the removal of the children;
(b)that the mother and father had not shared an intention to live in Bulgaria;
(c) that the residence of the parties in Bulgaria was temporary;
(d)that there is a grave risk that the return of the children under the convention to Bulgaria would expose the children to physical or psychological harm or could otherwise place the children in an intolerable situation;
(e)that the return of the children to Bulgaria in the absence of the father will place a grave risk of psychological harm to the children;
(f) that it is impossible for the father to return to Bulgaria.
All of those matters suggest that the grounds upon which special leave is sought are based upon a challenge to the findings of fact by the Family Court.
The father appears today represented by Counsel in relation to the application to discharge but Counsel is not instructed in relation to the special leave application or stay. The father has also put to me in submissions that another factor upon which he intends to rely is that his barrister ignored his instructions that he could not go back to Bulgaria and refers to an asserted error of fact in that regard. That is a reference to paragraph 4(f) "that it is impossible for the father to return to Bulgaria".
The father also puts to me this afternoon that he disputes the Full Court's findings about the impact of the Bulgarian law in paragraph 40 of the Full Court's decision. He also intends to dispute the finding of habitual residence. He submits to the Court that he has had problems with his lawyers and that is why he has not filed any further papers as yet. He did say in submissions from the bar table that, if the mother gave him his half share from a property he asserted the mother had sold in Bulgaria, then he may be able to arrange accommodation for his mother here in Adelaide and return to Bulgaria “in two or three months”.
The matters to which the father refers do not significantly improve the prospects of special leave to appeal being granted, relying as they appear to do on matters which could not be said to fall within the demands of the administration of justice.
I accept the submissions of Mr Hinton QC that in general the prospects of succeeding in a special leave application to the High Court, where there is merely a challenge to factual findings, are slim at best. It is not appropriate to say that there is no chance of success but, rather, the material raised by the father does not indicate that there is a substantial prospect that special leave to appeal will be granted.
The other factors which need to be taken into account are whether the subject matter, pending an appeal, needs to be preserved. The subject matter of the litigation can be the prompt return of children wrongfully removed from a Convention country to the Convention country. However, it could also be that the children residing in Australia is the subject matter of litigation. If the stay is refused, the chances of the children remaining in Australia are reduced and their residence in Australia is not preserved. That is one factor which I need to weigh up when considering whether to grant the stay.
One of the other factors is whether the grant of a stay will cause loss to the respondent. The respondent to the application in this case is, strictly speaking, the Central Authority. I do not take into account any possible loss to the Central Authority. However, I do consider the presence of the mother, who has come from Bulgaria to Australia (with a view to assisting in the return of the children to Bulgaria pursuant to the orders of this Court). If a stay is granted, there will be loss caused to her to the extent that any return of the children to Bulgaria will be delayed.
Reference is also made to the balance of convenience. In this case it is necessary to balance the interests of the children. I take into account their strong opposition as expressed in all of the reports. However, I also take into account that since September 2007, the children have been aware of the litigation seeking their return to Bulgaria, have known since late April 2008 that orders have been made for their return to Bulgaria. There will be further delay, at least, until January 2009 or later if the stay is granted pending a hearing of the special leave application.
There is little prospect that special leave to appeal will be granted. One of the purposes of the Convention is the prompt return of children to the Convention country. Balancing all of those factors and the other factors, including the opposition of the children and the interests of the children and the proposal of the father to seek leave to amend his application for leave to appeal, I am not satisfied that I should exercise my discretion to grant the stay. I refuse to grant the stay.
I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe.
Associate:
Date: 18 November 2008
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