A & GS & Others - [2004] FamCA 967

[2004] FamCA 967 FAMILY LAW ACT 1975

IN THE FULL COURT

OF THE FAMILY COURT OF AUSTRALIA
AT SYDNEY Appeal No. EA 56 of 2004
File No. PAF 1647 of 2004

IN THE MATTER OF:

“A”
(BY HER NEXT FRIEND)

Appellant Child

- and -

“GS”

First Respondent Father

- and -

“MQ”

Second Respondent Mother

- and -

ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA

Intervener

- and -

THE COMMONWEALTH CENTRAL AUTHORITY

Intervener

REASONS FOR JUDGMENT OF THE FULL COURT

CORAM: Finn, May and Carmody JJ

DATE OF HEARING: 20 July 2004

SUPPLEMENTARY SUBMISSIONS FROM
THE ATTORNEY-GENERAL: 30 July 2004

DATE OF JUDGMENT: 22 October 2004

APPEAL SUMMARY

MATTER:“A” (BY HER NEXT FRIEND) and “GS” and OTHERS
APPEAL NUMBER:  EA 56 of 2004 (PAF 1647 of 2004)
CORAM:Finn, May and Carmody JJ
DATE OF HEARING:  20 July 2004
DATE OF SUPPLEMENTARY SUBMISSIONS
FROM THE ATTORNEY-GENERAL: 30 July 2004
DATE OF JUDGMENT:  22 October 2004
CATCHWORDS: FAMILY LAW – APPEALS – Interpretation of Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”) – Whether a person other than a Central Authority has standing to apply under the Regulations for an order for the return of a child to the country of the child’s residence prior to the child’s removal or retention – Whether the Regulations confer jurisdiction on the Court to make an order in relation to an application for the return of a child when the application is made by a person other than the Central Authority – Meaning of regs 6(1) and (2) and reg 14 considered – Operation of s 69C of the Family Law Act 1975 considered – Whether the reg 16(3)(d) requires the Court to consider the human rights and fundamental freedoms of a child who is not the subject of the application made under the Regulations – Discussion of the scope of reg 16(3)(d).
FAMILY LAW – APPEALS – Whether the Court should over-rule the majority decision in the earlier Full Court decision in Panayotides – Consideration of the principles to be applied in determining whether to over-rule a majority decision from an earlier Full Court.

Caselaw cited:

Panayotides and Panayotides (1997) FLC 92-733

Attorney-General (Qld) v Australian Industrial Relations Commission; Minister for Employment (2002) 213 CLR 485

Golding v Golding (unreported, 3 May 1993, Treyvaud J)

In the Marriage of Barraclough (1987) 11 FamLR 773

Farnell and Farnell (1996) FLC 92-681

Ivanovic and Ivanovic (1996) FLC 92-689

Bryant and Bryant (1996) FLC 92-690

Nguyen and Nguyen (1989-90) 169 CLR 245

DP v Commonwealth Central Authority; JLM v Director-General, NSW Department of Community Services (2001) FLC 93-081

Appeal allowed.

Directions made for the filing of written submissions in relation to the Commonwealth Central Authority’s application to be substituted for the father in proceedings at first instance.

This is an appeal against orders made by Coleman J on 10 June 2004. The effect of those orders was that a child, S, should be returned to the United States of America pursuant to the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading A & GS & Others

Details

AGLC: A & GS & Others [2004] FamCA 967
Case: [2004] FamCA 967
Decision Date: 22 October 2004

CaseChat Overview and Summary

This appeal concerned the interpretation of the *Family Law (Child Abduction Convention) Regulations 1986* (Cth). The central dispute revolved around whether an individual, other than a designated Central Authority, possessed the legal standing to initiate proceedings under the Regulations seeking the return of a child to their habitual residence. The Full Court of the Family Court of Australia was tasked with determining this question, as well as whether the Regulations conferred jurisdiction on the Court to entertain such an application when made by a non-Central Authority.

The Court was required to consider the meaning and operation of specific provisions within the Regulations, namely regulations 6(1) and (2), and regulation 14, in conjunction with section 69C of the *Family Law Act 1975* (Cth). A further issue was whether regulation 16(3)(d) mandated the Court to examine the human rights and fundamental freedoms of a child who was not the direct subject of the application made under the Regulations, and to what extent the scope of this provision extended. The Court also had to address whether the majority decision in the Full Court’s earlier ruling in *Panayotides* should be overruled, and the principles governing such a determination.

The Court analysed the legislative intent and framework of the Regulations, which are designed to implement the Hague Convention on the Civil Aspects of International Child Abduction. It was held that the Regulations, as presently drafted, confer standing and jurisdiction to apply for a return order exclusively upon the Central Authority. The Court reasoned that the language of regulations 6 and 14, read in context, clearly delineates the role of the Central Authority as the sole applicant. Furthermore, the Court determined that regulation 16(3)(d) does not require consideration of the rights of children not directly involved in the application, as its focus is on the child who is the subject of the return proceedings. The Court declined to overrule *Panayotides*, finding no compelling reason to depart from the established majority decision.

Orders