ATTORNEY-GENERAL’S DEPARTMENT & MCGAFFEY - [2015] FamCA 722

FAMILY COURT OF AUSTRALIA

ATTORNEY-GENERAL’S DEPARTMENT & MCGAFFEY

[2015] FamCA 722

FAMILY LAW – CHILD ABDUCTION – HAGUE CONVENTION – Where the application was made more than 12 months after the alleged wrongful removal – Where the child has autism – Where the child objected to being returned but the family consultant opined that he was not mature enough for his views to be taken into account – Where it was found that given the special circumstances of the child his attachment with the mother was very relevant – Where the mother was settled and had better financial and medical supports in Australia – Where there was evidence that autistic children do not respond well to change of routine – Where the child is now settled in his new environment –Where the Court considered exercising a discretion to return the child notwithstanding being satisfied the child is settled – Where the Court declined to make a return order.

Family Law (Child Abduction Convention) Regulations 1986 (Cth), regs 14, 15 16

De L v Director General NSW Department of Community Services (1996) 187 CLR 640

Department of Family and Community Services & Raho [2013] FamCA 530

Director-General, Department of Community Services v M and C (1998) FLC 92-828

Director General, Department of Families, Youth and Community Care v Moore (1999) FLC 92-841

Director-General, Department of Family, Youth and Community Care & Thorpe (1997) 141 FLR 44

SCA & CR (2005) FLC 93-243

Secretary, Attorney- General’s Department v TS (2000) 161 FLR 392

State Central Authority v Ayob (1997) FLC 92 – 746

State Central Authority & Hajjar (2010) Fam CA 648

Townsend & Director-General, Department of Families, Youth & Community (1999) FLC 92-842

APPLICANT:

Secretary, Attorney General’s Department

RESPONDENT:

Ms McGaffey

FILE NUMBER:

SYC

1981

2015

DATE DELIVERED:

28 August 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Le Poer Trench J

HEARING DATE:

26 June 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Barnett

SOLICITOR FOR THE APPLICANT:

Australian Government Solicitor

COUNSEL FOR THE RESPONDENT:

Ms Giacomo

SOLICITOR FOR THE RESPONDENT:

Hamish Cumming Family Lawyers

Orders

The application filed 30 March 2015 is dismissed.
That the passports for both the respondent and the child be released to the respondent by the Registry Manager.
That Paragraph 1 of Exhibit A to the order of this court dated 1 April 2015, placing B (a male) born … 2004 on the Airport Watch List, is hereby discharged.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Secretary, Attorney General’s Department & McGaffey has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1981/2015

Secretary, Attorney General’s Department

Applicant

And

Ms McGaffey

Respondent

REASONS FOR JUDGMENT

Introduction

By the application filed 30 March 2015, the applicant, as delegate of the Commonwealth Central Authority (“the applicant”), applies for an order for the return of B (“the child”) (a male) born in 2004…

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.

Keep reading for free

Create a free CaseChat account to read ATTORNEY-GENERAL’S DEPARTMENT & MCGAFFEY and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2015] FamCA 722
Decision Date: 28 August 2015

CaseChat Overview and Summary

The case of *Attorney-General’s Department & McGaffey* concerned an application brought before Le Poer Trench J in the Family Court of Australia. The dispute involved an application for the return of a child pursuant to the Hague Convention on the Civil Aspects of International Child Abduction. The application was made more than 12 months after the alleged wrongful removal of the child.

The central legal issues before the Court were whether the child should be returned to his habitual residence, notwithstanding the passage of more than 12 months since the removal, and whether the child's objections to return, his autism, and his settlement in Australia constituted special circumstances justifying a refusal of the return order. The Court was required to consider the child's best interests, the impact of a return on his well-being, and the relevance of his attachment to his mother and his established routine in Australia.

Le Poer Trench J reasoned that while the general rule under the Hague Convention is to return a child if the application is made within 12 months, there is a discretion to refuse return if the child is settled in their new environment. In this instance, the Court found that the child, who has autism, had become settled in Australia. The evidence indicated that autistic children do not respond well to changes in routine, and the child's attachment to his mother, who provided better financial and medical support in Australia, was considered highly relevant. Despite the child's objections to being returned, the family consultant opined that he was not mature enough for his views to be given significant weight. However, the Court ultimately exercised its discretion, finding that the special circumstances of the child, including his autism and his settled state in Australia, weighed against making a return order.

Consequently, the Court dismissed the application for the child's return. The Court further ordered that the passports of the respondent and the child be released to the respondent and that the Airport Watch List order concerning the child be discharged.

Orders

Orders of the court

1. The application filed 30 March 2015 is dismissed.

2. That the passports for both the respondent and the child be released to the respondent by the Registry Manager.

3. That Paragraph 1 of Exhibit A to the order of this court dated 1 April 2015, placing B (a male) born … 2004 on the Airport Watch List, is hereby discharged.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.