Commonwealth Central Authority and Newcombe

[2016] FamCA 485

FAMILY COURT OF AUSTRALIA

COMMONWEALTH CENTRAL AUTHORITY & NEWCOMBE [2016] FamCA 485

FAMILY LAW –CHILD ABDUCTION – 1980 Hague Convention – return application - habitual residence not established – removal young child was unilateral and without consent of father but not wrongful within the meaning of the Regulations – application dismissed

APPLICANT: Commonwealth Central Authority

RESPONDENT: Ms Newcombe

INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

FILE NUMBER: MLC 758 of 2016

DATE DELIVERED: 16 June 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 7 and 8 April 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Porritt

SOLICITOR FOR THE APPLICANT: Department of Human Services Legal Services Branch

COUNSEL FOR THE RESPONDENT: Self-represented

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Dowler

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

Orders

1. Paragraphs 6, 7, 8 and 9 of the Order made on 10 February 2016 be and are discharged and the mother be and is hereby entitled to collect from the Registry all passport(s) she has lodged with the Registry.

2. In the event that the father or mother file a parenting application within 3 years, that application may be listed before me for directions within 24 hours.

3. The application of the Central Authority, filed 2 February 2016, be otherwise dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Commonwealth Central Authority & Newcombe 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 MELBOURNE

FILE NUMBER: MLC 758 of 2016

Commonwealth Central Authority

Applicant

And

Ms Newcombe

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. The Commonwealth Central Authority (“CCA”) by application filed 2 February 2016 seeks the return to Germany of B born in 2014, pursuant to reg 14 of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”). The application is made at the behest of the child’s father, Mr C (“the requesting parent” or “the father”).

2. The respondent is the mother (‘the mother”) of the child. She was born in Australia and is an Australian citizen. She is 22 years old and works as a manager. She currently resides in a country town outside D Town with her grandmother and daughter.

3. The requesting parent is Mr C. He was born in Germany and is 28 years old. He is foster carer. He is a German citizen and does not have a current residency or work permit visa for Australia. He resides in the small town of E Town approximately 2-3 hours’ drive outside City F in Germany.

4. B is the only child of the respondent and the requesting parent. She was born in D Town and is an Australian and German citizen. She has an Australian passport and has a German Registration Card.

5. The Regulations implement the 1980 Convention on Child Abduction[1] (“1980 Convention”) into Australian law. It is the Regulations, and not the 1980 Convention, which…