Commissioner of Police (State Central Authority) and Bryson - [2016] FamCA 72

FAMILY COURT OF AUSTRALIA

COMMISSIONER OF POLICE (STATE CENTRAL AUTHORITY) & BRYSON

[2016] FamCA 72

FAMILY LAW – CHILD ABDUCTION – Hague Convention – where the child was habitually resident in the United Kingdom – where the child was wrongfully removed to Australia by the mother – where the mother has failed to establish the matters referred to in the exception to a return order – where the Court considers “the best interests of the child” is not a reason in itself to refuse a return order – where the State Central Authority has established the matters referred to in sub regulation 16(1) and 16(1A) of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) – where orders are made for the return of the child to the United Kingdom.

Family Law Act 1975 (Cth) s 111B

Family Law (Child Abduction Convention) Regulations 1986 (Cth) reg 4, 8, 16

Hague Convention of 22 October 1980 on the Civil Aspects of International Child Abduction, art 5

Director General; Department of Child Safety & S (2005) FLC 93-249
DP v Commonwealth Central Authority; JLM v Director General, NSW Department of Community Services (2001) 206 CLR 401
McCall & McCall; State Central Authority (Applicant); Attorney General (Intervener) (1995) FLC 92-551
Quarmby v Director General, Director of Community Services (NSW) (2005) 34 Fam LR 8

APPLICANT:

Commissioner of Police South Australia (State Central Authority)

RESPONDENT:

Ms Bryson

FILE NUMBER:

ADC

4306

2015

DATE DELIVERED:

17 February 2016

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

4 February 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Keane

SOLICITOR FOR THE APPLICANT:

Crown Solicitor's Office

COUNSEL FOR THE RESPONDENT:

Litigant in Person

SOLICITOR FOR THE RESPONDENT:

Orders

That the Application of the State Central Authority filed 18 November 2015 for B (“the child”) born … 2010 to be returned to the United Kingdom pursuant to regulation 16(1) of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) be granted.
That the respondent mother Ms Bryson (“the mother”) do all things necessary to ensure that the child is returned to the United Kingdom within thirty (30) days of the date of this order and to notify the applicant of the date and time of the departure and return not later than ninety six (96) hours prior to departure.
That pending the return of the child to the United Kingdom, the mother be restrained and an injunction is granted restraining her from removing or attempting to remove the child from the Commonwealth of Australia.
That the Commissioner of the Australian Federal Police and all federal agents and Australian Federal Police shall retain the name of the child B born … 2010 on the Airport Watch List (PACE) at all international departure points in the Commonwealth of Australia.
That the said child be removed from the Airport Watch List (PACE) by Officers/Agents of the Australian Federal Police upon receipt of a letter from an Officer/Agent of the Department of Human Services on behalf of…

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 Commissioner of Police (State Central Authority) and Bryson

Details

AGLC: Commissioner of Police (State Central Authority) and Bryson [2016] FamCA 72
Case: [2016] FamCA 72
Decision Date: 17 February 2016

CaseChat Overview and Summary

The Commissioner of Police (State Central Authority) applied to the Federal Court of Australia for the return of a child, B, to the United Kingdom under regulation 16(1) of the Family Law (Child Abduction Convention) Regulations 1986 (Cth). The respondent was the child's mother, Ms Bryson.

The court was required to determine whether the child should be returned to the United Kingdom as a result of an alleged abduction by the mother. This involved considering the application of the Hague Convention on the Civil Aspects of International Child Abduction and the relevant Australian regulations.

Berman J found that the conditions for the child's return were met. The court reasoned that the child had been habitually resident in the United Kingdom and had been wrongfully removed to Australia. The court applied the principles of the Hague Convention, which prioritises the swift return of children wrongfully removed from their habitual residence to their country of origin, subject to certain exceptions which were not established in this case.

The court ordered the child's return to the United Kingdom within thirty days, restrained the mother from removing the child from Australia pending return, and placed the child on the Airport Watch List. The court also made ancillary orders regarding passports and the enforcement of its orders.

Orders

Orders of the court

That the Application of the State Central Authority filed 18 November 2015 for B (“the child”) born … 2010 to be returned to the United Kingdom pursuant to regulation 16(1) of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) be granted.

That the respondent mother Ms Bryson (“the mother”) do all things necessary to ensure that the child is returned to the United Kingdom within thirty (30) days of the date of this order and to notify the applicant of the date and time of the departure and return not later than ninety six (96) hours prior to departure.

That pending the return of the child to the United Kingdom, the mother be restrained and an injunction is granted restraining her from removing or attempting to remove the child from the Commonwealth of Australia.

That the Commissioner of the Australian Federal Police and all federal agents and Australian Federal Police shall retain the name of the child B born … 2010 on the Airport Watch List (PACE) at all international departure points in the Commonwealth of Australia.

That the said child be removed from the Airport Watch List (PACE) by Officers/Agents of the Australian Federal Police upon receipt of a letter from an Officer/Agent of the Department of Human Services on behalf of the State Central Authority advising on the travel arrangements for the said child to return to the United Kingdom on a date nominated for the said travel in the letter.

That the Marshall of the Family Court of Australia and all federal agents and Australian Federal Police and officers of the Police Forces and Services of the various states and territories are required and empowered to take all necessary steps to give effect to these orders.

That immediately prior to the departure of the child from Australia, paragraph 2 of the orders made on 24 November 2015 pertaining to the surrender of the said child’s and the respondent mother’s passports be discharged.

That the solicitor for the applicant do serve a sealed copy of this order on the proper officer of the Australian Federal Police as soon as practicable.

That there be liberty to apply.

10.

That all applications be otherwise dismissed.

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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