COMMONWEALTH CENTRAL AUTHORITY & FULLER

FAMILY COURT OF AUSTRALIA

COMMONWEALTH CENTRAL AUTHORITY & FULLER [2012] FamCA 395

FAMILY LAW – CHILD ABDUCTION – Hague Convention – Habitual residence and/or Acquiescence – where the mother and elder child had moved from Australia to New Zealand on numerous occasions – a second child born in Australia after the mother last left New Zealand which child was not subject to the application – consideration of the Full Court’s decision in Zotkiewicz & Commissioner of Police (No 2) (2011) FLC 93-472 in applying the test for determining the children’s habitual residence and taking into account all relevant matters together applying the settled principles applicable in determining habitual residence as set out by the High Court in LK v Director-General, Department of Community Services (2009) 237 CLR 582 – where on balance it was not established that the return of the mother and child to New Zealand from August 2010 to April 2011 was pursuant to a settled purpose further that the father had acquiesced to the mother’s April 2011 removal of the child from New Zealand – finally that the mother’s return to New Zealand with the child in June 2011 was for the express knowledge and initial consent of the father that the purpose of that trip was to enable the mother to collect possession and for the father to spend a short period of time with the elder child – the Central Authority’s application for the child to be returned to New Zealand is dismissed.

Family Law Act 1975 (Cth)
Family Law (Child Abduction Convention) Regulations 1986 (Cth) reg 14 and reg 16

State Central Authority v Camden [2012] FamCAFC 45
Zotkiewcz v Commissioner for Police (No. 2) (2011) FLC 93-472

APPLICANT: Secretary of the Department of the Attorney General as Commonwealth Central Authority

RESPONDENT: Ms Fuller

INDEPENDENT CHILDREN’S LAWYER: Mrs Mooney

FILE NUMBER: HBC 177 of 2012

DATE DELIVERED: 30 May 2012

PLACE DELIVERED: Cairns

PLACE HEARD: Hobart

JUDGMENT OF: Benjamin J

HEARING DATE: 2 & 3 May 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr D Wilson

SOLICITOR FOR THE APPLICANT: Australian Government Solicitor

COUNSEL FOR THE RESPONDENT: Mr D G Grey

SOLICITOR FOR THE RESPONDENT: Zeeman Kable & Page

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mrs K Mooney

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Orders

1. The application of the Secretary of the Department of Attorney General filed 2 March 2012 is dismissed.

2. The respondent mother, Ms Fuller, be and is at liberty to collect from the Registry Manager any passport of the child J born … 2008 (“the child”) and herself currently held for safe-keeping in the Registry of this Court.

IT IS REQUESTED

1. The Australian Federal Police shall remove the name of the child, J born … 2008, from the Airport Watch List, at all points of international arrivals and departures from Australia.

IT IS FURTHER ORDERED

1. These proceedings shall be removed from the list of cases requiring determination.

2. All subpoenaed documents are to be returned to the persons or institutions from which…