State Central Authority & Ustinov (No. 4)

In the matter of State Central Authority & Ustinov (No. 4), Dawe J of the Federal Circuit Court of Australia considered an application by the father for the discharge of an order requiring the return of two children to Bulgaria. The children had been brought to Australia by the father, and a previous appeal by the father to the Full Court regarding their return had been unsuccessful. The father sought to discharge the return order pursuant to regulation 19A of the Family Law (Child Abduction Convention) Regulations 1986, arguing it was impracticable to carry out or that exceptional circumstances justified the discharge.

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.