State Central Authority v Papastavrou

[2008] FamCA 1120

FAMILY COURT OF AUSTRALIA

STATE CENTRAL AUTHORITY & PAPASTAVROU [2008] FamCA 1120

FAMILY LAW – CHILD ABDUCTION – Hague Convention

APPLICANT: State Central Authority

RESPONDENT: Ms Papastavrou

FILE NUMBER: MLC 3203 OF 2008

DATE DELIVERED: 22 December 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 15 October 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Sweeney

SOLICITOR FOR THE APPLICANT: Victorian Government Solicitor

COUNSEL FOR THE RESPONDENT: Ms Nikou SC and Mr Strum

SOLICITOR FOR THE RESPONDENT: Nicholes Family Lawyers

Orders

1. That the application of the State Central Authority be and is hereby dismissed.

IT IS NOTED that publication of this judgment under the pseudonym SCA & Papastavrou is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 3203 of 2008

STATE CENTRAL AUTHORITY

Applicant

And

MS PAPASTAVROU

Respondent

REASONS FOR JUDGMENT

1. This is an application by the State Central Authority, filed 9 April 2008, seeking the return to Greece of the children S born … May 1999 and E born … February 2003, pursuant to the provisions of the Family Law (Child Abduction Convention) Regulations 1986 (“the Regulations”). As far as Australia is concerned, the Regulations implement the Convention on the Civil Aspects of International Child Abduction adopted by the delegates to the XIV Session of the Hague Conference on Private International Law in October 1980 (“the 1980 Convention”). The 1980 Convention entered into force on 1 December 1983 and was ratified by Australia with effect from 1 January 1987.

2. The starting point is reg 14 which provides that where a child is wrongfully removed from to Australia then the responsible Central Authority may apply for an order for the return of the child to the country (“the requesting state”) in which the child was habitually resident immediately before the wrongful removal.  The court to which the application is made must order the return of the child to the requesting state if certain preconditions are fulfilled and unless one or more of the exceptions to mandatory return are made out.  If an exception does apply, there is a discretion not to return the child.

3. The Regulations and the 1980 Convention which the Regulations implement are concerned with the appropriate forum for adjudication of parenting matters, including parental responsibility and relocation, rather than what is in the immediate best interests of a subject child. As has been observed by the English court[1]

   “In these cases, the authorities make it clear that in normal circumstances the courts of the country of habitual residence are best to determine issues relating to the welfare of the child, primarily because the best outcome for the child’s future will be identified by reference to past events and the physical, emotional, social and cultural milieu in which the family have lived.  All these matters, including in particular any resolution of factual disputes relating to past events, are, prima facie, more easily addressed in courts of that State.”

   [1] per…