Commonwealth Central Authority and Sangster (No 2) - [2018] FamCA 894

FAMILY COURT OF AUSTRALIA

COMMONWEALTH CENTRAL AUTHORITY & SANGSTER (NO. 2)

[2018] FamCA 894

FAMILY LAW – CHILD ABDUCTION – application for discharge of return order based on exceptional circumstances within the meaning of r.19A(2)(c) of the Family Law (Child Abduction Convention) Regulations 1986.

FAMILY LAW – CHILD ABDUCTION – relevant circumstances – where circumstances must be exceptional – where sets of circumstances taken cumulatively were considered exceptional.

FAMILY LAW – CHILD ABDUCTION – factors to be taken into account in the exercise of the discretion to discharge a return order.

FAMILY LAW – CHILD ABDUCTION – where issue raised but not pursued or necessary to determine, being whether conditions to return are machinery provisions which can be varied or substantive orders so that, where judge is functus officio, orders cannot be changed absent consent of all parties or appellate intervention.

Family Law (Child Abduction Convention) Regulations 1986 (Cth)
Family Law Act 1975 (Cth)

De L v Director-General, NSW Department of Community Services [1996] 187 CLR 640
Department of Family and Community Services & Smollett (No. 2) [2018] FamCA 372
DP v Central Authority; JLM v NSW Dept of Community Services (2001) FLC 93-081
In the matter of A (Children) (AP) [2013] UKSC 60
LK and the Director-General of Department of Community Services [2009] 237 CLR 582
Mercredi v Chaffe [2012] Fam 22
Re B (A Child)(Habitual Residence: Inherent Jurisdiction) [2016] UKSC 4

APPLICANT:

Commonwealth Central Authority

RESPONDENT:

Ms Sangster

INDEPENDENT CHILDREN’S LAWYER:

Mr Fitzgerald

FILE NUMBER:

HBC

1189

2017

DATE DELIVERED:

5 October 2018

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne – by video link to Hobart and telephone link with the CCA in Canberra

JUDGMENT OF:

Bennett J

HEARING DATE:

5 October 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Webb

SOLICITOR FOR THE APPLICANT:

Commonwealth Central Authority

COUNSEL FOR THE RESPONDENT:

Mr Tresize

SOLICITOR FOR THE RESPONDENT:

Dobson Mitchell Allport

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER

Legal Aid Commission of Tasmania

Orders

Amended Pursuant to Rule 17.02 of the Family Law Rules 2004 – 30 November 2018

IT IS ORDERED THAT:

(1)Pursuant to Regulation 19A(c) of the Regulations, paragraphs 2 to 12 inclusive of the Order made on 19 July 2018 be and are hereby discharged, paragraphs 1, 2 and 3 of the Order made on 21 December 2017 be and are hereby discharged and the Order made on 22 December 2017 be and are hereby discharged. (Amended 30 October 2018)
(2)My reasons for decision this day be transcribed and when settled placed on the Court file and a copy provided to the parties.
(3)Otherwise, the Application in a Case filed by the Independent Children’s Lawyer on 10 August 2018 be dismissed.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym CCA & Sangster has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note:…

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.

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Details

Case: [2018] FamCA 894
Decision Date: 5 October 2018

CaseChat Overview and Summary

In the matter of *Commonwealth Central Authority and Sangster (No 2)*, Bennett J of the Family Court of Australia considered an application to discharge a child return order. The application was brought by the Commonwealth Central Authority on behalf of Mr Sangster, seeking to rely on exceptional circumstances within the meaning of regulation 19A(2)(c) of the *Family Law (Child Abduction Convention) Regulations 1986* (Cth).

The central legal issue before the Court was whether the circumstances presented were sufficiently exceptional to warrant the discharge of the existing return order. This required an assessment of the cumulative effect of various factors to determine if they met the threshold of "exceptional circumstances" as contemplated by the Regulations. The Court also considered the factors relevant to the exercise of its discretion in discharging such an order.

Bennett J reasoned that while individual circumstances might not be exceptional, their cumulative effect could be. The Court found that the totality of the circumstances presented did indeed constitute exceptional circumstances, justifying the discharge of the return order. The Court's decision involved a careful balancing of the principles of the Hague Convention and the specific factual matrix before it, ultimately exercising its discretion to discharge the order.

Consequently, the Court ordered that paragraphs 2 to 12 of the Order made on 19 July 2018, paragraphs 1, 2 and 3 of the Order made on 21 December 2017, and the Order made on 22 December 2017 be discharged pursuant to regulation 19A(c). The application in a case filed by the Independent Children’s Lawyer was otherwise dismissed.

Orders

Orders of the court

Amended Pursuant to Rule 17.02 of the Family Law Rules 2004 – 30 November 2018

IT IS ORDERED THAT:

(1) Pursuant to Regulation 19A(c) of the Regulations, paragraphs 2 to 12 inclusive of the Order made on 19 July 2018 be and are hereby discharged, paragraphs 1, 2 and 3 of the Order made on 21 December 2017 be and are hereby discharged and the Order made on 22 December 2017 be and are hereby discharged. (Amended 30 October 2018)

(2) My reasons for decision this day be transcribed and when settled placed on the Court file and a copy provided to the parties.

(3) Otherwise, the Application in a Case filed by the Independent Children’s Lawyer on 10 August 2018 be dismissed.

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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