Department of Community Services & Whipp - [2008] FamCA 182

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF COMMUNITY SERVICES & WHIPP

[2008] FamCA 182

FAMILY LAW – CHILD ABDUCTION – Hague Abduction Convention Proceedings – where baby born in Australia and by agreement taken to New York – interim orders made in Australia prior to child’s departure to USA - where baby removed from New York and brought back to Australia by mother – where mother alleges child habitually resident in Australia - habitual residence of the child – where father not recorded upon child’s birth certificate – parentage presumptions - where mother denies father has rights of custody – Paternity and custody petitions filed by the father in the Family Court of the State of New York not served upon mother prior to child’s removal - Family Court of the State of New York not exercising rights of custody - consent and acquiesce discussed –– expert evidence on New York Family Law – where Central Authority fails to establish threshold conditions for application of Abduction convention – application dismissed

FAMILY LAW – CHILD ABDUCTION – Hague Abduction Convention Proceedings – Practice and Procedure – adjournment application - spirit of the Abduction Convention and the importance of these proceedings being dealt with promptly

FAMILY LAW – CHILDREN – Parenting orders – shared parental responsibility

FAMILY LAW – CHILDREN – Parentage Orders – parentage presumptions

Family Law Act 1975 (Cth) s 4, 61C, 65C, 65DAC, 65DAE, 65Y, 69P, 69Q, 69R, 69S, 69T, Pt VII, Div 12
Family Law (Child Abduction Convention) Regulations 1986 (Cth) regs 14, 15, 16(1A), (19)(1), Art 1, 3, 7, 11
Family Law Rules 2004 (Cth) r 19.50
Births Deaths & Marriages Registration Act 1995 (NSW) s 18(c)
Status of Children Act 1996 (NSW) s 19, 20(1)(A)
Status of Children Regulations 2003 (NSW) r 19
Domestic Relations Law s 76, Art 5-A
Uniform Child Custody Jurisdiction & Enforcement Act s 75-d

Police Commission of South Australia v Temple (No. 2) (1993) FLC 92-424
De L v Director General, NSW Department of Community Services (1996) FLC 92-706
Director General Department of Family Youth & Community Care v Bennett (2000) FLC 93-011
Gazi v Gazi (1993) FLC 92-341
Re E (A Minor) (Abduction) (1989) 1 FLR 135
P v P (Minors) (Child Abduction) (1992) 1 FLR 155
Panayotides v Panayotides (1997) FLC 92-733
Cooper and Casey (1995) FLC 92-575
Re B (Minors) (Abduction No. 2) (1993) 1 FLR 993
Re F (A Minor) (Child Abduction) (1992) 1 FLR 548
DW and Director General, Department of Child Safety (2006) FLC 93-255
Re J (A Minor) (Abduction: Custody Rights) [1990] 2 AC 562
HZ v State Central Authority (2006) FLC 93-264
Re J (A Minor) (1990) 3 WLR 949
Re B (A Minor) (1993) 1 FLR 993
State Central Authority v McCall (1995) FLC 92-552
Department of Health and Community Services v Casse (1995) FLC 92-629
Mozes v Mozes (2001) 239 F. 3d 1067 (9th Cir.2001)
Goode and Goode (2006) FLC 93-286
P & Commonwealth Central Authority (2000) FamCA 461
S v…

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

AGLC: Department of Community Services & Whipp [2008] FamCA 182
Case: [2008] FamCA 182
Decision Date: 7 March 2008

CaseChat Overview and Summary

The case of *Department of Community Services & Whipp* concerned an application brought under the Hague Convention on the Civil Aspects of International Child Abduction. The dispute arose after a baby, born in Australia, was taken to New York by agreement. Interim orders had been made in Australia before the child's departure. Subsequently, the mother brought the child back to Australia, alleging that the child was habitually resident in Australia. The father was not recorded on the child's birth certificate, and the mother denied he had rights of custody. Petitions concerning paternity and custody had been filed by the father in the Family Court of the State of New York, but these had not been served on the mother prior to the child's removal from New York.

The central legal issues before the court were whether the child had been habitually resident in New York, whether the father had been exercising rights of custody at the time of the child's removal, and whether the mother had consented to or acquiesced in the child's removal from New York. The court also considered the implications of the New York Family Court not having exercised its rights of custody. Expert evidence on New York Family Law was presented to assist the court in determining these issues.

Justice Ryan found that the Central Authority had failed to establish the threshold conditions necessary for the application of the Abduction Convention. His Honour reasoned that the father had not been exercising rights of custody at the relevant time, and that the mother had not consented to or acquiesced in the child's removal from New York. Consequently, the application brought by the Department of Community Services as the Central Authority was dismissed.

Orders

Orders of the court

That the application filed by the Department of Community Services as the Central Authority on 6 November 2007 is dismissed.

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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