Handbury & State Central Authority and Anor - [2020] FamCAFC 5

FAMILY COURT OF AUSTRALIA

HANDBURY & STATE CENTRAL AUTHORITY AND ANOR

[2020] FamCAFC 5

FAMILY LAW – APPEAL – CHILD ABDUCTION – Hague Convention 1980 – Repudiatory retention – Whether the trial judge erred in her conclusion that the appellant mother’s actions constituted an objectively identifiable act of repudiation – Consideration of whether an act of repudiatory retention axiomatically breached the second respondent father’s rights of custody, including the right to determine the habitual residence of the child, in accordance with regulation 4(2), notwithstanding that the family remained living in the same household for many months subsequent to the repudiation – Whether the trial judge failed to afford the appellant mother procedural fairness to enable her to adduce further evidence, in circumstances where she initiated the relevant evidence about statements allegedly made to the child about her country of residence – Whether the trial judge failed to give adequate reasons as to whether the retention was in breach of the second respondent father’s rights of custody- Where there is no merit in the grounds of appeal – Appeal dismissed.

FAMILY LAW – APPEAL – COSTS - Whether an order could be made against the appellant mother for the second respondent father’s costs – Consideration of ss 117 and 117AA of the Act – Application for costs by the second respondent father dismissed.

Family Law Act 1975 (Cth) ss 117, 117AA
Family Law (Child Abduction Convention) Regulations 1986 (Cth) regs 4, 14, 16, 30
Hague Convention on the Civil Aspects of International Child Abduction 1980

Artso & Artso (1995) FLC 92-566
Director-General, NSW Department of Community Services and JLM (2001) FLC 93-090; [2001] FamCA 1338
In re C (Children) (International Centre for Family Law, Policy and Practice intervening) [2019] AC 1; [2018] UKSC 8
Re G-E (Children) (Hague Convention 1980: Repudiatory Retention and Habitual Residence) [2019] EWCA Civ 283
Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54

APPELLANT:

Ms Handbury

FIRST RESPONDENT:

State Central Authority

SECOND RESPONDENT:

Mr Handbury

INDEPENDENT CHILDREN’S LAWYER:

Victoria Legal Aid (did not participate)

FILE NUMBER:

MLC

122

2019

APPEAL NUMBER:

SOA

2019

DATE DELIVERED:

21 January 2020

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Alstergren CJ, Strickland and Williams JJ

HEARING DATE:

18 November 2019

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

22 August 2019

LOWER COURT MNC:

[2019] FamCA 668

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Dr R. Smith

SOLICITOR FOR THE APPELLANT:

KHQ Lawyers

COUNSEL FOR THE FIRST RESPONDENT:

Mr M. Nicholls QC

SOLICITOR FOR THE FIRST RESPONDENT:

Department of Health & Human Services, Legal Services Branch

COUNSEL FOR THE SECOND RESPONDENT:

Mr I. Jones QC

SOLICITOR FOR THE SECOND RESPONDENT:

Burke Family Law

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Victoria Legal Aid (did not participate)

Orders

The second respondent father have leave to rely on the summary of argument filed late on 14 November 2019.
The appellant mother have leave to rely on the schedule of costs filed late…

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

Case: [2020] FamCAFC 5
Decision Date: 21 January 2020

CaseChat Overview and Summary

The appeal in Handbury & State Central Authority and Anor was brought by the appellant mother against the decision of the Family Court of Australia, which found that her actions constituted an act of repudiation under the Hague Convention 1980, leading to the father's rights of custody being breached. The court was tasked with determining whether the trial judge's conclusion that the mother's actions constituted an objectively identifiable act of repudiation was erroneous and whether this act automatically breached the father's rights of custody, including his right to determine the habitual residence of the child. The court also needed to assess whether the trial judge failed to provide the mother with procedural fairness by not allowing her to present additional evidence and whether she failed to adequately justify her decision regarding the breach of custody rights.

The court examined the mother's conduct and concluded that her actions, including statements made to the child about their country of residence, were indeed objectively identifiable acts of repudiation. It was determined that such acts inherently breached the father's rights of custody, even though the family continued to live together for several months following the repudiation. The court found that the trial judge did not fail to provide procedural fairness to the mother, as she had the opportunity to present her case and did not introduce new evidence. Furthermore, the court held that the trial judge's reasons were sufficient, and the mother's arguments did not successfully challenge the trial judge's decision. Consequently, the appeal was dismissed.

In addition to the appeal, the father applied for costs under sections 117 and 117AA of the Family Law Act 1975. The court considered the application but dismissed it, finding that there was no basis for awarding costs to the father. This decision was made in the context of the overall outcome of the appeal, which did not find merit in the mother's arguments.

The final orders of the court included allowing both parties to rely on late-filed documents, dismissing the mother's appeal, and dismissing the father's application for costs. The form of the order is subject to being entered into the court's records.

Orders

Orders of the court

The second respondent father have leave to rely on the summary of argument filed late on 14 November 2019.

The appellant mother have leave to rely on the schedule of costs filed late on 12 November 2019.

The appeal be dismissed.

The second respondent father’s application for costs be dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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