Department of Community Services and Tarritt - [2007] FamCA 1400

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF COMMUNITY SERVICES & TARRITT

[2007] FamCA 1400

FAMILY LAW – HAGUE CONVENTION – Child in Australia pursuant to an order of an American court – Child not returned at the end of the discrete period under the order – “Defence” of grave risk considered – Consideration of 11 year old child’s objections.

Family Law Act 1975 (Cth)

De L v Director-General of New South Wales Department of Community Services (1996) 87 CLR 640; (1996) 20 Fam LR 390; (1996) FLC 92-706
In Re R [1995] 1 FLR 716
S v S (Child Abduction) (Child’s views) [1992] 2 FLR 492
The Secretary of the Department of Human Services State Central Authority and Lenz (unreported) 20 November 2002, Kay J

APPLICANT:

DIRECTOR-GENERAL, DEPARTMENT OF COMMUNITY SERVICES

RESPONDENT:

MS TARRITT

FILE NUMBER:

SYC

6193

2007

DATE DELIVERED:

20 November 2007

PLACE DELIVERED:

Albury

PLACE HEARD:

Sydney

JUDGMENT OF:

THE HONOURABLE JUSTICE CRONIN

HEARING DATE:

1 & 2 November 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

MS TOCKAR

SOLICITOR FOR THE APPLICANT:

LEGAL SERVICES UNIT, DEPARTMENT OF COMMUNITY SERVICES

COUNSEL FOR THE RESPONDENT:

MR ANDERSON

SOLICITOR FOR THE RESPONDENT:

CALDERCOTT & WILLIAMS

Orders

That the applicant forthwith make such arrangements as are necessary to ensure the return of the child … (female) born … October 1996 to United States of America forthwith in the company of such person and upon such conditions as may be necessary pursuant to the provisions of the Hague Convention on the Civil Aspects of International Child Abduction.
That subject to these orders, paragraphs 1 and 3 of the minutes referred to as Exhibit 1 in the orders of Judicial Registrar Loughnan are discharged to enable the said child to be returned to the United Sates of America.
That sealed copies of this Application and these orders be served upon the Commissioners of the Australia Federal Police.
That the parties are at liberty to apply herein on twenty-four hours notice.
That the mother’s application (Form 2A) filed 4 October 2007 be dismissed.
That the application of the applicant filed 3 September 2007 be otherwise dismissed.
That the copy of the letter dated 1 November 2007 from Oliver Law Firm, the mother’s “proof of evidence” document and the copies of the legislation of the State of Iowa be exhibits in the proceedings and remain on the Court file.

IT IS NOTED that publication of this judgment under the pseudonym Department of Community Services & Tarritt is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 6193 of 2007

DEPARTMENT OF COMMUNITY SERVICES

Applicant

And

MS TARRITT

Respondent

REASONS FOR JUDGMENT

On 2 November 2007, I dealt with a defended application by the Director-General of the Department of Community Services (NSW) for the return of the child born in October 1996 to the United States of America pursuant to the provision of the Family Law (Child Abduction Convention) Regulations which enact into…

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.

Continue reading Department of Community Services and Tarritt

Details

AGLC: Department of Community Services and Tarritt [2007] FamCA 1400
Case: [2007] FamCA 1400
Decision Date: 20 November 2007

CaseChat Overview and Summary

The Honourable Justice Cronin considered an application concerning the return of a child to the United States of America. The applicant, the Department of Community Services, sought orders related to the child's return, while the mother had also filed an application. The central dispute revolved around the child's habitual residence and the application of the Hague Convention on the Civil Aspects of International Child Abduction.

The court was required to determine whether the child, born in October 1996, had been wrongfully removed from the United States of America, which was considered the child's habitual residence. This involved assessing the circumstances of the child's presence in Australia and whether the removal or retention was contrary to the rights of custody attributed to the applicant under the law of the United States. The court also had to consider the mother's application and the overall merits of the applications before it.

Justice Cronin reasoned that the child's habitual residence was indeed the United States of America and that the child had been wrongfully retained in Australia. The court applied the principles of the Hague Convention, focusing on the prompt return of children wrongfully removed. The mother's application was dismissed, as were other applications by the applicant, save for those necessary to facilitate the child's return. The court ordered that the child be returned to the United States of America forthwith, in the company of such person and upon such conditions as were necessary under the Convention.

Orders

Orders of the court

That the applicant forthwith make such arrangements as are necessary to ensure the return of the child … (female) born … October 1996 to United States of America forthwith in the company of such person and upon such conditions as may be necessary pursuant to the provisions of the Hague Convention on the Civil Aspects of International Child Abduction.

That subject to these orders, paragraphs 1 and 3 of the minutes referred to as Exhibit 1 in the orders of Judicial Registrar Loughnan are discharged to enable the said child to be returned to the United Sates of America.

That sealed copies of this Application and these orders be served upon the Commissioners of the Australia Federal Police.

That the parties are at liberty to apply herein on twenty-four hours notice.

That the mother’s application (Form 2A) filed 4 October 2007 be dismissed.

That the application of the applicant filed 3 September 2007 be otherwise dismissed.

That the copy of the letter dated 1 November 2007 from Oliver Law Firm, the mother’s “proof of evidence” document and the copies of the legislation of the State of Iowa be exhibits in the proceedings and remain on the Court file.

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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