Department Of Child Safety and CARTER

[2006] FamCA 1466

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF CHILD SAFETY & CARTER [2006] FamCA 1466

APPEAL – RE-EXERCISE OF DISCRETION – CHILD ABDUCTION – CHILD BROUGHT TO AUSTRALIA – CONDITIONS IMPOSED UPON RETURN ORDER – The father successfully appealed a decision of the Family Court that the father had acquiesced in the mother’s retention of their child in Australia after leaving the United States of America without the father’s knowledge or consent – Upon finding that a return order was to be made in relation to the child, the Full Court invited submissions from both parties as to the  conditions that would need to be satisfied before the return order took effect – A major purpose of conditions is to render satisfactory, as far as is reasonable, the circumstances of return of the child.  Placing the mother in a more advantageous, or even the same position, that she would have been in prior to the removal is not a purpose.

APPELLANT: DIRECTOR-GENERAL,  DEPARTMENT OF CHILD SAFETY

RESPONDENT: CARTER

FILE NUMBER: BRF 1454 of 2006

APPEAL NUMBER: NA 83 of 2006

DATE DELIVERED: 22 December 2006

PLACE DELIVERED: Brisbane

JUDGMENT OF: KAY, WARNICK AND BOLAND JJ

HEARING DATE: Written Submissions

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 19 SEPTEMBER 2006

LOWER COURT MNC: [2006] FamCA 933

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Baston

SOLICITOR FOR THE APPELLANT: Crown Law

COUNSEL FOR THE RESPONDENT: Mr Bourke

SOLICITOR FOR THE RESPONDENT: Bernadette Farnell

FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 83  of 2006
File Number: BRF 1454  of 2006

DIRECTOR-GENERAL,  DEPARTMENT OF CHILD SAFETY

Appellant

And

CARTER

Respondent

REASONS FOR JUDGMENT

1. Following orders made on 6 December 2006, we have received from each of the parties proposed conditions for the return to the United States of America of the child “P”.

2. The proposals of the parties varied in relation to the funds to be provided by the father for the living expenses of the mother and children after return, and the period of accommodation to be secured by him for them.

3. As well, the mother sought funding for legal fees of anticipated proceedings in the USA.

4. A major purpose of conditions is to render satisfactory, as far as is reasonable, the circumstances of return of the child.  Placing the mother in a more advantageous, or even the same position, that she would have been in prior to the removal is not a purpose.  The mother’s proposals are unreasonable.

5. We have largely accepted the proposals of the Central Authority, save for three matters.  Firstly, counsel for the Central Authority conceded at trial that if a visa for the mother or her other son, “B”, could not be obtained, the mother having done all required of her, the application for return should be refused.

6. Secondly, we consider the same position should apply in respect of other conditions if unmet.

7. Thirdly, we do not consider that the father ought, as a pre-condition to return, be obliged to commence legal proceedings in California.  The mother is free to bring proceedings.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court

Associate: 

Date:  22 December 2006