State Central Authority & Ustinov (No. 4)

[2008] FamCA 987

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
Ho v Professional Services Review Committee No 295 [2007] FCA 388

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

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.

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

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