Sunday, 24 May 2009

Family Court: Hague Case conditions of return to the USA

In the recent Family Court case of Department of Community Services & Sharmain (No. 2), Justice Rose imposed conditions as to the return of the child to the US. The case is an interesting how to guide as to the nature of those conditions:


1. That the following conditions apply in relation to the order for return of the child ... (“the child”), born ... December 2004, made 22 December 2008:
1.1 That the Registrar of the Family Court of Australia, Sydney Registry, hand over the passports and any other travel documents belonging to the Respondent Mother MS MACK also known as MS SHARMAIN born ... October 1968 and the child ..., female, born ... December 2004 to THE MOTHER to facilitate the return of THE CHILD to the United States of America.
1.2 That forthwith THE MOTHER shall do all acts and things to apply for visas and any other documentation as required for herself and THE CHILD and J MACK, born ... August 1999 to travel to the United States of America including but not limited to attending interviews, signing any documentation, paying any fees and providing any documents.
1.3. That paragraph 1.1 and 1.5 of the orders dated 25 February 2008 be varied to allow THE MOTHER and the child and the child J MACK to depart Australia in accordance with the orders of this Court and the Australian Federal Police do give effect to the variation.
That prior to the departure of THE MOTHER and the child from the Commonwealth of Australia for the United States of America the Australian Federal Police remove the names of the following persons from the PASS Alert System in operation at all Australian international arrival and departure points as soon as practicable:
2.1 MS SHARMAIN also known as MS MACK, female, born ... October 1968;
2.2 THE CHILD, female, born ... December 2004.
That following the departure of THE CHILD from the jurisdiction of the Commonwealth of Australia all other orders made by the Court in relation to this matter be discharged.
That the Applicant serve sealed copies of these orders and the orders made 22 December 2008 and 13 March 2009 upon the Commissioner of the Australian Federal Police.
That the Applicant forthwith do all things necessary to facilitate the payment by the father of US $400 by Western Union transfer to its closest office to the residence of the mother on or before 12 May 2009.
That the payment be deemed to have been received on the day that Western Union notifies the mother that the funds are held in Australia for collection by her.
That the Applicant facilitate the father in furnishing a written undertaking to the Court on or before 4pm 12 May 2009 that:
7.1 He will not approach or interfere in the mother’s care of the child pending order of the District Court, E County in the State of Colorado, United States of America (“the District Court”) or written agreement between the mother and father.
7.2 He will sign all Documents and do all things necessary to ensure provision of suitable independent accommodation for the mother and the child and J MACK in C, United States of America upon seven (7) days written notice being given to him by the mother and pending order of the District Court.
7.3 That he will provide particulars of weekly child support that he will cause to be paid to the mother in respect to the child and promptly make all payments to her upon seven (7) days written notice being given by her to him and as she may direct.
7.4 That he will promptly pay an amount equal to half of all hospital, medical and dental expenses of the child pending order of the District Court.
7.5 That he will support an application by the mother for expedition of the hearing of custody and access proceedings in the District Court.
That the Applicant cause the father’s written undertakings the subject of these orders to be lodged at the Sydney Registry of Court and furnish copies thereof to the mother by email.
That the parties to the proceedings may publish copies of all orders made in these proceedings and reasons for judgment delivered to all or any officials of Australian and United States of America Government departments and agencies.
That the Applicant cause the following documents to be furnished to the Associate to Judge R of the District Court as soon as possible.
10.1 Copies of the orders made ... and this day;
10.2 Copies of the judgments delivered ....and to be delivered 6 May 2009.
Liberty to apply to set aside, suspend or vary all or any of the orders made this day upon 24 hours written notice being given to a Registrar of the Court and the other party.

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