DIRECTOR-GENERAL, DEPARTMENT OF COMMUNITIES, CHILD SAFETY & DISABILITY SERVICES & SALESA - [2016] FamCA 781

FAMILY COURT OF AUSTRALIA

DIRECTOR-GENERAL, DEPARTMENT OF COMMUNITIES, CHILD SAFETY & DISABILITY SERVICES & SALESA

[2016] FamCA 781

FAMILY LAW – CHILD ABDUCTION – Hague Convention – Cross-examination – where mother sought to cross-examine various witnesses – where application for cross-examination dismissed – where mother has not complied with Family Law Rules 2004 (Cth) rule 15.14 – where cross-examination would result in an adjournment of the trial.

FAMILY LAW – CHILD ABDUCTION – Hague Convention – Return Order – where child is to return to New Zealand – Habitual residence – whether the father departed Australia for New Zealand on a temporary or permanent basis – where child is habitually resident in New Zealand – Rights of custody – where under New Zealand law the father and the mother were a guardian of the child – where mother has identical rights to father – where father had a right of custody – Retention a breach of fathers’ rights – where any interference with ability to exercise right of custody is a breach of that right – where there was a wrongful removal – where court is obliged to make an order for return.

FAMILY LAW – DISCRETION – Grave risk of harm – enquiry involves some consideration as to the interests of the child – where mother alleges psychological harm upon being exposed to domestic violence – where mother alleges psychological or physical harm from being disciplined by the father – where mother alleges neglect of the child by father – where evidence is neither clear or compelling – where discretion to not order return of child is not enlivened – Child’s objection to return – where Hague Report prepared – where there is no evidence the child had a strong objection to returning – where the objection does not have a strength showing beyond mere expression

Family Law (Child Abduction Convention) Regulations 1986 (Cth) reg 2, 4, 15, 16, 26
Hague Convention of 22 October 1980 on the Civil Aspects of International Child Abduction, art 3
Family Law Rules 2004 (Cth) r 15.14

Commissioner of Police (State Central Authority) & Bryson [2016] FamCA 72
Cooper v Casey (1995) 18 Fam LR 433
Director-General Department of Child Safety & Stratford (2005) FLC 19-249
Director-General NSW Department of Community Services v JLM (2001) 28 Fam LR 243
DP v Commonwealth Central Authority; JLM v Director-General, NSW Department of Community Services (2001) 206 CLR 401
Gsponer v Director-General, Department of Community Services (Vic) (1989) FLC 92-001
In the Marriage of McCall (1994) 18 Fam LR 307
LK v Director-General, Department of Community Services (2009) 237 CLR 582
MW v Director-General Department of Community Services (2008) 82 ALJR 629
P v Secretary of Justice [2001] NZLR 40
State Central Authority v Weston [2010] FamCA 599

APPLICANT:

The Director-General, Department of Communities, Child Safety and Disability Services

RESPONDENT:

Ms Salesa

FILE NUMBER:

BRC

6826

2016

DATE DELIVERED:

16 September 2016

PLACE DELIVERED:

Cairns

PLACE HEARD:

Townsville

JUDGMENT OF:

Tree J

HEARING DATE:

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 COMMUNITIES, CHILD SAFETY & DISABILITY SERVICES & SALESA [2016] FamCA 781
Case: [2016] FamCA 781
Decision Date: 16 September 2016

CaseChat Overview and Summary

The case involved the Director-General, Department of Communities, Child Safety & Disability Services (the applicant) and Ms Salesa (the respondent mother) concerning the return of a child to New Zealand under the Hague Convention. The dispute centred on whether the child, L, habitually resided in New Zealand and whether the father had a right of custody that was breached by the child's retention in Australia. The application for cross-examination of witnesses by the mother was also a significant point of contention. The matter was heard by Tree J.

The court was required to determine whether the child L was habitually resident in New Zealand at the time of his removal to Australia. It also had to consider whether the father possessed a right of custody under New Zealand law and if the mother's retention of the child constituted a wrongful removal and a breach of that right. Furthermore, the court needed to assess whether any exceptions to the return order, specifically the grave risk of harm to the child or the child's strong objection to returning, were enlivened by the evidence presented. The court also considered the mother's application to cross-examine witnesses, which had been dismissed by the Family Court.

Tree J reasoned that the child was habitually resident in New Zealand, finding that the father's departure from Australia to New Zealand was permanent. The court determined that under New Zealand law, both parents were guardians and thus possessed identical rights of custody. The retention of the child in Australia was found to be a wrongful removal and a breach of the father's right of custody, as any interference with the ability to exercise that right constitutes a breach. The court found the mother's allegations of grave risk of harm to the child were neither clear nor compelling, and therefore the discretion to refuse a return order was not enlivened. Similarly, the court found no evidence of a strong objection from the child to returning to New Zealand. The application for cross-examination was dismissed due to non-compliance with Family Law Rules 2004 (Cth) rule 15.14 and the likelihood of an adjournment.

The court ordered the child L to be returned to New Zealand by 24 September 2016. Injunctions were issued restraining the mother from removing the child from Australia or changing his usual day-to-day residence. The court also ordered that the child and mother be placed on the Family Law Watch list, with provisions for their removal upon confirmation of travel arrangements. All other applications were dismissed.

Orders

Orders of the court

The child L (the male child) born … 2007 be returned to New Zealand; and for the purposes of giving effect to this Order:

(a) The said child leave the Commonwealth of Australia on or before 23 September 2016;

(b) The said child arrive in New Zealand on or before 24 September 2016.

(c) Pending the said child returning to the New Zealand, the Respondent mother Ms Salesa born … 1983 continue to be restrained and an injunction is hereby issued, restraining her from removing or attempting to remove the said child from the Commonwealth of Australia.

(d) Pending the said child’s return the Respondent mother Ms Salesa born … 1983 be restrained and an injunction issue restraining her from changing the said child’s usual day to day residence from the premises where she and the said child is currently residing namely, Suburb X in state of Queensland.

(e) That subject to sub-order (f) below, the Commissioner of the Australian Federal Police and all Federal Agents of the Australian Federal Police retain the names of the Respondent mother Ms Salesa born … 1983, and the child L born … 2007 on the Family Law Watch list at all international departure points in Australia.

(f) That the child L born … 2007, and the Respondent mother Ms Salesa born … 1983 be removed from the Family Law Watch list by officers/agents of the Australian Federal Police upon receipt of a letter from an officer of the Department of Communities, Child Safety and Disability Services advising of the travel arrangements made for the said child to return to New Zealand from 12.00am on the date nominated for the said travel in the letter.

(g) That the Marshall of the Family Court of Australia and the Commissioner and all Federal Agents of the Australian Federal Police and Officers of the Police Forces and Services of the various States and Territories are required and empowered to take all necessary steps to give effect to these orders.

(h) That to facilitate the return of the said child to New Zealand, Ms T, Department of Communities, Child Safety and Disability Services or her nominee be at liberty to release, all current passports relating to the child for the purposes of the said child's return to New Zealand; and release the Respondent mother's passport to her or her nominee upon request.

(i) That liberty to apply be granted to the applicant to seek any further orders necessary to allow him or officers of the Department of Communities, Child Safety and Disability Services to make such arrangements as are necessary to facilitate and ensure the return of the said child in accordance with this Order and pursuant to the Central Authority’s obligation under regulation 20 of the Family Law (Child Abduction Convention) Regulations 1986.

That all other applications be 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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