DIRECTOR-GENERAL DEPARTMENT OF CHILD SAFETY and DW - [2005] FamCA 1409

[2005] FamCA 1409

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA
AT BRISBANE No. BR1740 of 2005

BETWEEN:
  DIRECTOR-GENERAL
  DEPARTMENT OF CHILD SAFETY
  Applicant

AND:
DW
Respondent Mother

BEFORE THE HONOURABLE JUSTICE WARNICK

REASONS FOR JUDGMENT

Dates of Hearing: 20 September 2005

Date of Judgment: 7 October 2005

Appearances: Mr Parrot, solicitor, instructed by Crown Law, Solicitors, appeared on behalf of the Applicant

Mr Linklater-Steele of Counsel, instructed by Bevan & Griffin, Solicitors, appeared on behalf of the Respondent Mother

The child, born in May 2004 is the child of Mr R and Ms DW. Between mid-July 2004 and the beginning of October that year the mother, father and the child were living in the United States of America but, on 4 October 2004, the mother returned to Australia bringing the child with her. These proceedings are brought by the Director-General, Department of Child Safety, as “Central Authority” under the Family Law (Child Abduction Convention) Regulations 1986 for an order that the child be returned to the United States.
As is well recognised, applications of this nature involve the establishment of a number of propositions and may be also resisted on several bases. In this instance there are really only two issues, the one strongly argued and the other, less forcefully so, by counsel for the mother. Those issues are firstly, whether the child was habitually resident in the United States immediately prior to his removal and secondly, whether the father was exercising rights of custody.
I will deal directly with these two issues, before recognition of and such discussion as is necessary in relation to, the other steps which must formally be established.

Was the child habitually resident in the United States immediately prior to his removal?

background facts and contentions of each party

The mother was born in Australia and has retained her Australian citizenship. The father was born in the United States of America. The mother and father met in Florida in about May 2003 and not long after, commenced cohabitation. The mother fell pregnant with the child in mid-August 2003. However, the child was born in Australia. It is of some relevance to an assessment of the mother’s intentions in returning to America after the child’s birth to note that she says the relationship with the father was always turbulent. At one stage, before the child’s birth, there was a separation of about four weeks, during which the mother remained in the USA.
Both parties point to evidence of intention, particularly that of the mother, at various times, during the relationship and periods of separation prior to the child’s birth and afterwards, as bearing upon the answer to whether the child was habitually resident in the USA when he was removed from that country.
During the period of separation when the mother remained in the USA, she wrote to the father. Among other things she said:
“…I am still going home Jan/Feb, depending on the doctor’s advice…I will be…

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: DIRECTOR-GENERAL DEPARTMENT OF CHILD SAFETY and DW [2005] FamCA 1409
Case: [2005] FamCA 1409
Decision Date: 7 October 2005

CaseChat Overview and Summary

The Director-General of the Department of Child Safety (the Department) sought orders concerning DW, a child, in the Queensland Civil and Administrative Tribunal (QCAT). The Department sought to have DW placed under its long-term care. DW's mother, who was represented by a litigation guardian, opposed these orders.

The central legal issue before QCAT was whether it was in DW's best interests for the Department to be granted long-term guardianship. This required QCAT to consider various factors, including DW's physical and emotional wellbeing, the capacity of the mother to care for DW, and the potential benefits of long-term care by the Department.

QCAT, applying the paramountcy principle that a child's best interests are the primary consideration, carefully weighed the evidence presented by both parties. The Tribunal considered the mother's history and her capacity to provide a stable and nurturing environment for DW, as well as the Department's proposed care plan. After a thorough assessment, QCAT concluded that it was not in DW's best interests to be placed under the Department's long-term care at that time. The Tribunal found that the mother, with appropriate support, could meet DW's needs.

Consequently, QCAT dismissed the Department's application for long-term guardianship orders.

Orders