Chinasa & Ekwueme - [2023] FedCFamC1F 79

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Chinasa & Ekwueme [2023] FedCFamC1F 79

File number(s): NCC 36 of 2017

Judgment of: ALTOBELLI J

Date of judgment: 7 February 2023

Catchwords: FAMILY LAW – PARENTING – International travel – Where the mother seeks to travel with the child to Country C and Country B– Where the father opposes international travel to non-Hague Convention countries – Where the mother is on a bridging visa and the father and child are Australian citizens – Where the Court finds there would be a risk of harm to the child and risk of non-return if allowed to travel overseas – Previous order reinstated for prohibition on child to be removed from Australia and for child to remain on Family Law Watchlist

Legislation: Hague Convention on the Civil Aspects of International Child Abduction

Cases cited:
Cales & Cales (2010) FLC 93-459; [2010] FamCAFC 237

Gin & Hing [2010] FamCA 617

Kuebler & Kuebler (1978) FLC 90-434; [1978] FamCA 26

Line & Line (1997) FLC 92-729; [1996] FamCA 145

Lorde & Chu [2015] FamCAFC 3

Thomason & Malhotra [2010] FamCAFC 85

Division: Division 1 First Instance

Number of paragraphs: 31

Date of hearing: 6 February 2023

Place: Sydney

Counsel for the Applicant: Mr Havenstein

Solicitor for the Applicant: King & York Lawyers

Counsel for the Respondent: Ms Bateman

Solicitor for the Respondent: Inner West Solicitors Pty Ltd

Counsel for the Independent Children's Lawyer: Mr Sperling

Solicitor for the Independent Children's Lawyer: Ark Law Lawyers
ORDERS

NCC 36 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR CHINASA

Applicant

AND:
MS EKWUEME

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

ALTOBELLI J

DATE OF ORDER:

7 FEBRUARY 2023

THE COURT ORDERS THAT:
1.Order 1 from the orders made on 25 January 2017 is reinstated, namely:
(a)The Applicant MR CHINASA and the Respondent MS EKWUEME his/her/their servants and/or agents are hereby restrained from removing or attempting to remove or causing or permitting the removal of the child, X, born 2016 from the Commonwealth of Australia.
(b)It is requested that the Australian Federal Police give effect to this 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 until further order or the Court orders its removal.
(c)The Marshal and all officers of the Australian Federal Police and the police forces of the States and Territories are requested and authorised to give effect to these orders.

2.All outstanding applications otherwise are dismissed and the matter removed from the list of cases awaiting finalisation.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation…

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 Chinasa & Ekwueme

Details

AGLC: Chinasa & Ekwueme [2023] FedCFamC1F 79
Case: [2023] FedCFamC1F 79
Decision Date

CaseChat Overview and Summary

The case before the Federal Circuit and Family Court of Australia (Division 1) involves a dispute between Mr Chinasa (the father) and Ms Ekwueme (the mother) regarding international travel with their son, X, who was born in 2016. The father, an Australian citizen, and the mother, who is on a bridging visa pending a spousal visa application, have a contentious relationship, which culminated in their separation in December 2016. The mother seeks permission to travel with X to two non-Hague Convention countries, Country C and Country B, while the father opposes this, citing concerns for X's safety and the risk of non-return. The primary legal issue for the Court to decide was whether the mother should be permitted to travel internationally with X, considering the risk of harm to the child and the risk of non-return if allowed to travel to non-Hague Convention countries.

The Court, in its reasoning, considered various factors, including the mother's indifferent attitude towards the travel advisory warning against travel to Country C, the mother's own evidence about the dangers to her safety in Country C, and the potential for harm to X if they were to return to Country C. The Court also highlighted the mother's unconvincing attempts to distance herself from the fears for her safety that prompted her departure from Country C and her implausible explanations regarding her belief that past dangers were alleviated because she was no longer married to the father. The Court found that the mother's application for international travel was based on uncertain grounds and did not adequately address the potential dangers to her son's welfare.

Based on the evidence before the Court, it was satisfied that there was a real risk that if X was allowed to travel to Country C with his mother, he would be exposed to a risk of harm, as well as the risk that he would not be returned to Australia. The Court also found that the mother's case did not adequately address the potential dangers to X's welfare, given her own evidence about the risks to her and the current travel advisory. The Court accepted the concerns expressed by the Independent Children's Lawyer and the father and concluded that the orders proposed by them were appropriate. The Court reinstated an earlier order prohibiting the removal of X from Australia and placed him on the Family Law Watchlist.

In summary, the Court denied the mother's application for international travel with X, due to the significant risk of harm to the child and the risk of non-return if allowed to travel to non-Hague Convention countries. The Court reinstated the earlier order that prohibited the removal of X from Australia and required him to be placed on the Family Law Watchlist.

Orders