Commonwealth Central Authority & Cotter

Case [2016] FamCA 209


FAMILY COURT OF AUSTRALIA

COMMONWEALTH CENTRAL AUTHORITY & COTTER [2016] FamCA 209

FAMILY LAW — CHILD ABDUCTION — 1980 Hague Convention — alleged wrongful retention of child — habitual residence.

FAMILY LAW — CHILD ABDUCTION — exceptions to return — extent to which child is settled in new environment is irrelevant if application filed within one year of retention (as here) — grave risk of harm and intolerable situation — no exception to return applicable — a relevant consideration to the exercise of the discretion not to return a child if (unlike here) an exception had been found to apply may include delay and/or the extent to which a child has integrated into her new environment — application dismissed.

FAMILY LAW — CHILD ABDUCTION – practice and procedure – appointment of an independent children’s lawyer – mediation – conditions to return — direct judicial communication within the International Hague Network of Judges.

Family Law (Child Abduction Convention) Regulations 1986 (Cth)
APPLICANT: Commonwealth Central Authority
RESPONDENT: Mr Cotter
INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid
FILE NUMBER: MLC 5000 of 2015
DATE DELIVERED: 5 April 2016
PLACE DELIVERED: Melbourne
PLACE HEARD: Melbourne
JUDGMENT OF: Bennett J

HEARING DATE:

LAST SUBMISSION:

14, 15, 16, December 2015, 29 January 2016

5 and 8 February 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Porritt
SOLICITOR FOR THE APPLICANT: Department of Human Services, Legal Services Branch
SOLICITOR FOR THE RESPONDENT: Self-Represented
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Dowler
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

Orders

  1. The application of the Commonwealth Central Authority (“CCA”) filed 3 June 2015 be granted.

  2. The father, Mr Cotter, do all acts and things necessary to cooperate with the applicant CCA and the mother, Ms R, to facilitate the return of the child B born … 2010 (“the child”) to Argentina within 10 days or such other time as the CCA may agree upon and confirm in writing.

  3. The child be returned to Argentina in the care of the mother Ms R (“the mother”).

  4. For the purpose of the mother being able to return the child to Argentina, paragraph 1 of the Order made on 30 July 2015 (placing the child on the watch list) and paragraph 4 of the Order made on 14 December 2015, as amended on 19 December 2015 (for the surrender of the child’s passport to the court for safekeeping) be and are hereby discharged with the effect that the child’s details are removed from the watch list and the mother is hereby at liberty to collect the child’s passport from the court.

  5. The CCA inform the father in writing of the details of the flights to be taken by the mother and child from Australia.

  6. The father be and is hereby restrained by injunction:-

    (a)  from communicating with or being in the presence of the child within 24 hours of the child’s scheduled departure from Australia as notified to him pursuant to paragraph 5 of this Order;

    (b) from removing the child from the…

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Commonwealth Central Authority & Cotter [2016] FamCA 209
Case
[2016] FamCA 209
Decision Date

CaseChat Overview and Summary

The Commonwealth Central Authority (CCA) applied for the return of a child, B, to Argentina, alleging wrongful retention by the father, Mr Cotter. The application was heard by Bennett J.

The court was required to determine whether the child had been wrongfully retained in Australia under the Hague Convention on the Civil Aspects of International Child Abduction, 1980, and if so, whether any exceptions to the child's return applied. The court also considered procedural matters, including the appointment of an independent children's lawyer and conditions for the child's return.

Bennett J found that the child had been wrongfully retained in Australia. The court reasoned that the exceptions to return, such as a grave risk of harm or the child being settled in a new environment, were not applicable in this instance, particularly as the application was filed within one year of the retention. The court noted that while delay and integration into a new environment can be relevant considerations for discretion, they are secondary to the primary obligation to return a child when an exception has not been established.

The court ordered the return of the child to Argentina in the care of the mother, Mr Cotter to cooperate with the return, and discharged previous orders concerning the child's passport and watch list status. Injunctions were placed on Mr Cotter to prevent him from interfering with the child's departure. Liberty was reserved to apply for further conditions regarding the return, and the matter was to be relisted upon confirmation of the child's arrival in Argentina, at which point the CCA's application and Mr Cotter's response would be dismissed.

Orders

Orders of the court

1.

The application of the Commonwealth Central Authority (“CCA”) filed 3 June 2015 be granted.

2.

The father, Mr Cotter, do all acts and things necessary to cooperate with the applicant CCA and the mother, Ms R, to facilitate the return of the child B born … 2010 (“the child”) to Argentina within 10 days or such other time as the CCA may agree upon and confirm in writing.

3.

The child be returned to Argentina in the care of the mother Ms R (“the mother”).

4.

For the purpose of the mother being able to return the child to Argentina, paragraph 1 of the Order made on 30 July 2015 (placing the child on the watch list) and paragraph 4 of the Order made on 14 December 2015, as amended on 19 December 2015 (for the surrender of the child’s passport to the court for safekeeping) be and are hereby discharged with the effect that the child’s details are removed from the watch list and the mother is hereby at liberty to collect the child’s passport from the court.

5.

The CCA inform the father in writing of the details of the flights to be taken by the mother and child from Australia.

6.

The father be and is hereby restrained by injunction:-

(a) from communicating with or being in the presence of the child within 24 hours of the child’s scheduled departure from Australia as notified to him pursuant to paragraph 5 of this Order;

(b) from removing the child from the State of Victoria;

(c) from attending at or within 100 metres of the airport from which the child and mother are scheduled to depart Australia;

(d) from being a passenger on the same flight as the mother and child are ticketed to depart -

and from causing permitting or suffering his agent or any member of his family or his partner, Ms N, to do so.

7.

I reserve liberty to each of the CCA, the father and the independent children’s lawyer to have this matter relisted before me within 2 clear working days after delivery of this decision for the purpose of making application for any further or other conditions to return and any party who seeks to make such an application must first provide to each other party to the proceeding by electronic means a minute of the specific conditions sought by him or her and then provide a copy of that minute to Registrar Sikiotis of this Registry - email …

8.

The CCA inform my associate (email …) promptly once it receives confirmation from the mother that the child has arrived in Argentina.

IT IS DIRECTED:

9.

That, upon my associate receiving notification that the child has arrived in Argentina, this matter be relisted before me with all parties being excused from appearing or attending court and the application of the CCA and the response of the father thereto be otherwise dismissed and paragraph 6 of this Order be discharged.

10.

That a copy of these reasons for decision be sent to Judge Tagle.

11.

All subpoenaed material be returned to the party providing same within 30 days or the expiration of the appeal period.

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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