Boyd & Sage - [2020] FamCA 482

FAMILY COURT OF AUSTRALIA

BOYD & SAGE

[2020] FamCA 482

FAMILY LAW – PARENTING – urgent application run concurrently with proceedings in Scotland in respect of a child wrongfully removed to Scotland in respect of whom a return order has been made under the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction as implemented by the Child Abduction and Custody Act 1985 (UK).

FAMILY LAW – PARENTING – where application accepted into the COVID-19 list of cases and expedited accordingly.

FAMILY LAW – JURISDICTION – where Australia retains preeminent jurisdiction in relation to the child by virtue of Articles 5 and 7 of the Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children

FAMILY LAW – PRACTICE AND PROCEDURE – where this Court is ready and willing to sit simultaneously with the Scottish Court, by audio visual link, if to do so will lend clarity to matters and assist the conclusion of the Scottish proceedings and the speedy return of the child to Australia.

Child Abduction and Custody Act 1985 (UK)
Convention of 25 October 1980 on the Civil Aspects of International Child Abduction
Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children
Family Law Act 1975 (Cth)

APPLICANT:

Ms Boyd

RESPONDENT:

Mr Sage

INDEPENDENT CHILDREN’S LAWYER:

Ms Lonergan

FILE NUMBER:

MLC

5782

2020

DATE DELIVERED:

5 June 2020

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Bennett J

HEARING DATE:

5 June 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT:

Knight Family Lawyers

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

Kennedy Partners

COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER:

Ms Hutchings

SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER:

Victoria Legal Aid

Orders

Henceforth, until the father files a Notice of Address for Service to the contrary, the Address for Service of the respondent father be noted in the records of the Court as Kennedy Partners, … Melbourne, 3000.
This matter be listed for an interim determination of parenting matters on 20 August 2020 before me at 9.00am.
There be leave to Mr Kennedy AM to make an oral application on behalf of the father that the child X born … 2013 (“the child”) be returned to Melbourne, Victoria, Australia forthwith and that the mother do all acts and things necessary to implement that return.
Pursuant to section 7 and 11 of the Australian Passports Act 2005 (Cth) and the court being satisfied that it is in the best interests of the child a passport for the child X born … 2013 issue on the application of the father without the consent of the mother and IT IS REQUESTED that any such application be expedited to permit the return of the child to Australia as soon as practicable and the father be at liberty to provide this Order 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 Boyd & Sage

Details

AGLC: Boyd & Sage [2020] FamCA 482
Case: [2020] FamCA 482
Decision Date: 5 June 2020

CaseChat Overview and Summary

This matter concerned an urgent application brought by the father, Mr Sage, against the mother, Ms Boyd, regarding their child, X. The dispute arose in the context of concurrent proceedings in Scotland concerning the child, who had been wrongfully removed to Scotland and for whom a return order had been made under the Hague Convention. The Australian proceedings were accepted into the COVID-19 list and expedited.

The court was required to determine issues of jurisdiction and parenting, particularly in light of the ongoing Scottish proceedings and the child's wrongful removal. A key legal issue was whether Australia retained preeminent jurisdiction in relation to the child, which the court found it did by virtue of Articles 5 and 7 of the 1996 Hague Convention. The court also considered the practicalities of managing concurrent proceedings and facilitating the child's return to Australia.

Bennett J reasoned that Australia retained preeminent jurisdiction and that the court was willing to sit simultaneously with the Scottish Court via audio-visual link to clarify matters and assist in the child's speedy return. The court made numerous orders aimed at facilitating the child's return to Australia, including orders for the issuance of an Australian passport for the child without the mother's consent, the surrender of passports upon arrival, and prohibitions on removing the child from Australia. The court also made orders regarding communication between the parents, the provision of information, and the conduct of psychological assessments.

Orders

Orders of the court

Henceforth, until the father files a Notice of Address for Service to the contrary, the Address for Service of the respondent father be noted in the records of the Court as Kennedy Partners, … Melbourne, 3000.

This matter be listed for an interim determination of parenting matters on 20 August 2020 before me at 9.00am.

There be leave to Mr Kennedy AM to make an oral application on behalf of the father that the child X born … 2013 (“the child”) be returned to Melbourne, Victoria, Australia forthwith and that the mother do all acts and things necessary to implement that return.

Pursuant to section 7 and 11 of the Australian Passports Act 2005 (Cth) and the court being satisfied that it is in the best interests of the child a passport for the child X born … 2013 issue on the application of the father without the consent of the mother and IT IS REQUESTED that any such application be expedited to permit the return of the child to Australia as soon as practicable and the father be at liberty to provide this Order to the Department of Home Affairs in Australia or any other government instrumentality.

The mother forthwith send to the father electronically passport photographs of the child so that he can complete the passport application.

The mother advise the father and keep the father advised of her residential address and contact details.

The father keep the mother advised of any change in the address of his residence and his contact details.

UNITL FURTHER ORDER

Neither parent attend at or within 200m of any place the other parent resides or attends for the purpose of education or work.

Any communication about the child, save for in the event of an emergency, be by email, text or by such other electronic parenting platform as the Independent Children's Lawyer recommends.

IT IS FURTHER ORDERED

10.

Immediately upon arriving in Australia the mother surrender the child’s British and Australian passports, together with any other travel documentation, that has been issued to the child and surrender that to her solicitors, and her solicitors deposit that with the Registry of the Court to be held safely until further order.

11.

Each of the mother, Ms Boyd, and the father, Mr Sage, and their servants and agents be and are restrained from removing or attempting to remove or causing or permitting the removal of the child X, female, born … 2013 from the Commonwealth of Australia.

12.

Once the child X, female, born … 2013 re-enters Australia, she be and is hereby restrained from leaving the Commonwealth of Australia until further order.

13.

IT IS REQUESTED that the Australian Federal Police give effect to the preceding order by placing the name of the said child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch List for a period of two years.

AND IT IS NOTED that any parent seeks that the child or child’s name remain on the Watch List for a period beyond the period specified in this Order, that party must seek such an order by filing and serving an application and an affidavit setting out the evidence which supports that application in the Family Court of Australia or the Federal Circuit Court of Australia.

14.

A copy of this order be emailed immediately to the AFP Operations Coordination Centre by the Melbourne Registry of the Family Court of Australia.

15.

IT IS FURTHER REQUESTED that the Independent Children's Lawyer consider the availability of an early mediation through the Family Dispute Resolution Service at Victoria Legal Aid even whilst the child and mother are in quarantine for an agreement about time and communication with the father.

16.

The father file and serve a response to the Application in a Case of the mother by not later than 19 June 2020 at 12.00 noon.

17.

The mother file and serve any reply to the father’s evidence by not later than 6 days following service of the father’s responding material.

18.

The mother explain on oath her failure to attend the hearing this day and, if an affidavit is filed by the mother pursuant to paragraph 17 of this Order, the mother may include the explanation in that affidavit or in any event the explanation be given in affidavit filed by not later than 25 June 2020.

19.

Within 7 days the mother file and serve any evidence upon which she proposes to rely from her psychologist and psychiatrist referred to but not identified in paragraph 4 of the mother’s affidavit, affirmed on 4 June 2020. In the event that the mother does not seek to rely on any evidence from these practitioners, she inform the Independent Children's Lawyer and the father, through their respective lawyers, of the name and contact details of the practitioners.

20.

The mother advise the father and the Independent Children's Lawyer and the father, through his solicitors, of the flight details for the return journey for X and the mother from Scotland to Australia.

21.

The Independent Children's Lawyer endeavour to reach an agreement with the mother and the father as to interim time and communication between the father and the child.

22.

The Independent Children's Lawyer investigate and inform the parties of what arrangements can be made for the father to deliver gifts to the child, or leave them for the child, during quarantine provided that the gifts be delivered not more than once each day.

23.

The mother and the father do all acts and things necessary and submit to an assessment for the purpose of a report being prepared by Dr B, psychiatrist, as to his or her mental health, vulnerabilities, psychological functioning and any other matter which may impact upon his or her capacity to parent or to cooperate with one another in the parenting of X.

24.

The mother and the father, if in receipt of assistance from Victoria Legal Aid, promptly make application for an extension of assistance to cover the reasonable costs of the assessment by Dr B, psychiatrist or otherwise pay such reasonable costs himself or herself.

25.

The mother forthwith inform the Independent Children's Lawyer of the whereabouts of the personal effects of the child (which were not taken to Scotland) and the whereabouts of the dog which was in the household with the mother and the child before they travelled to Scotland.

26.

The s 11F report referred to in paragraph 7 of the Order made on 4 June 2020 be released by not later than 13 August 2020.

27.

The Family Consultant be at liberty to speak with the single expert witness psychiatrist, if any, who is preparing, or who has prepared a report of the mother and the father.

28.

I DIRECT that a copy of this Order be sent to the proper officer of the court in the Scottish proceeds … of 2020 at ... requesting that a copy of this Order be provided to the clerk of the judge of the Scottish Court and a further copy be placed on the court file in the Scottish proceedings prior to the next hearing on 29 June 2020.

29.

On or before 19 June 2020 at 12.00 noon, the father file and serve any evidence he relies in relation to his own mental health from any psychologist, psychiatrist, counsellor or like professional.

30.

If the father does not seek to rely on any evidence as to his mental health, he inform the Independent Children's Lawyer and the mother, through their respective lawyers, of the name and contact details of any psychologist, psychiatrist, or counsellor he has attended upon for treatment or assessment in the last three years.

31.

To the extent that the parties need permission to do so, each party may cause unlimited subpoenas to produce documents to issue provided that the subpoenas are returnable prior to 22 July 2020.

32.

Otherwise the Application in a Case of the Mother filed on 4 June 2020 be dismissed.

33.

Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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