Harris & Harris

Case [2010] FamCAFC 221

FAMILY COURT OF AUSTRALIA

HARRIS & HARRIS [2010] FamCAFC 221

FAMILY LAW - APPEAL – CHILD ABDUCTION – PROCEDURAL FAIRNESS –Whether the manner in which the proceedings were conducted denied the father procedural fairness – Where it was asserted the father received erroneous information from the Commonwealth and State Central Authorities – Proceedings conducted “on the papers” without cross-examination – Where initial advice from the Central Authority was erroneous and misleading – Whether the trial Judge erred in failing to enquire whether the father had been informed of his rights and had elected not to participate in the proceedings – Whether, in cases where the evidence regarding domestic violence is controversial, there is a duty on the trial Judge to go behind the application to ensure the unrepresented father’s rights were fully protected – No procedural unfairness established – No merit in procedural fairness grounds.

FAMILY LAW - APPEAL – CHILD ABDUCTION – HAGUE CONVENTION – Whether the trial Judge erred in approach to application by not considering the return of the child separate from return with the mother – Where it was the common expectation of the parties that if an order was made the mother would return to Norway and father only sought supervised contact – No error established.

FAMILY LAW - APPEAL – CHILD ABDUCTION – HAGUE CONVENTION – Whether the trial Judge erred in making factual findings of domestic violence and abuse that were not supported on the evidence – Whether the trial Judge erred in making findings of fact that were based on inadequate or inconclusive corroborative evidence – Whether the trial Judge erred in accepting the mother’s untested evidence relating to domestic violence while rejecting other parts of her untested evidence – Where trial Judge placed significant weight on the mother’s evidence of domestic violence that was independently corroborated in accordance with approach endorsed in Panayotides v Panayotides  (1997) FLC 92-733 – Where the status and weight afforded to hearsay statements improperly relied on by trial Judge did not impugn the balance of the finding of domestic violence – Where balance of trial Judge’s conclusions were based on independently corroborated evidence of domestic violence – Where the inferences drawn by trial Judge were open to her Honour on the evidence – Whether the trial Judge failed to have appropriate regard to the standard of proof to be applied – Where trial Judge applied the standard of proof required by s 140 of the Evidence Act 1995 (Cth) – No error in factual findings or standard of proof established.

FAMILY LAW - APPEAL – CHILD ABDUCTION – HAGUE CONVENTION – Grave risk of physical or psychological harm to the child or placing the child in an intolerable situation – Whether the trial Judge erred in failing to properly consider conditions that could be attached to an order for the return of the child – Whether the trial Judge erred in finding that the mother would not be protected in Norway – Whether trial Judge…

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Details
AGLC
Harris & Harris [2010] FamCAFC 221
Case
[2010] FamCAFC 221
Decision Date

CaseChat Overview and Summary

The case of Harris & Harris involved an appeal against a decision made under the Hague Convention on child abduction, with the primary dispute centering around the procedural fairness of the proceedings and the factual findings regarding domestic violence. The appeal was heard by a higher court in Australia, which was tasked with determining whether the trial judge had erred in various aspects of the decision, including the application of procedural fairness, the approach to the Hague Convention, and the factual findings concerning domestic violence and the risk to the child upon return to Norway.

The court identified several legal issues, including whether the trial judge had erred in the manner of conducting the proceedings, whether there was a failure to consider the return of the child separate from the return with the mother, and whether the trial judge had erred in making factual findings about domestic violence that were not supported by the evidence. Furthermore, the court had to assess whether the trial judge had properly considered the grave risk of physical or psychological harm or placing the child in an intolerable situation, as well as the potential conditions that could be attached to an order for the child’s return.

The court found that there was no procedural unfairness established in the trial judge's conduct of the proceedings, as the father had not demonstrated that the manner in which the proceedings were conducted denied him procedural fairness. Additionally, the court held that the trial judge did not err in her approach to the Hague Convention application, as there was no error in her consideration of the return of the child separate from the mother. Regarding the factual findings about domestic violence, the court concluded that the trial judge did not err in her findings, as they were supported by the evidence and the standard of proof was appropriately applied. The court also found that the trial judge had properly considered the risk of harm to the child and had not erroneously conflated psychological risk with physical harm. Therefore, the appeal was dismissed, and the application to adduce further evidence was allowed in part, while each party was ordered to bear their own costs.

In conclusion, the appellate court upheld the trial judge's decision, finding that there was no merit in the procedural fairness grounds, no error in the approach to the Hague Convention, and no error in the factual findings or standard of proof. The appellate court also determined that the trial judge had appropriately assessed the risk to the child and had not failed to consider conditions that could be attached to an order for return. The appeal was dismissed, and the father's application to adduce further evidence was allowed in part, with no order as to costs.

Orders

Orders of the court

1.

The appeal is dismissed.

2.

By consent the father’s application to adduce further evidence filed 30 June 2010 is allowed in part.

3.

There be no order as to costs.

Background

Background to the litigation

The trial Judge indicated the specific approach she intended to take to the voluminous evidence relied on by the State Central Authority and the mother by noting:... It would not aid the adjudication of these matters to recite in their entirety the various allegations and denials. The approach I have determined upon is to recount some key elements which give the flavour of the disputed evidence as well as to highlight where concessions were made, unchallenged evidence and otherwise disputed facts which were corroborated by compelling evidence. (paragraph 140) (our emphasis) Her Honour then went on to say she proposed to deal with the evidence adopting the approach used by Jordan J in Panayotides & Panayotides which we have set out in paragraph 68, having regard to the comments of the Full Court in that case when the matter was subject of an appeal. Also relevant to this discussion is her Honour’s explanation in paragraph 82 of her reasons. There she said:Fortunately in relation to a number of factual disputes there is independent evidence available to which it is appropriate to attach significant weight. There is also a considerable amount of evidence from the parties close friends and family members filed in support of their respective cases. Unless stated differently this evidence is not sufficiently independent that it would be appropriate to attach to it the degree of weight which would be required to resolve disputed evidence. It is clear from her Honour’s explanation in paragraph 82 she rejected as having sufficient probative weight to determine the serious issue of physical and psychological abuse much of the evidence relied on, particularly by the father, which evidence included statements from his family members and others who had seen him interact with the child. Her Honour commenced her consideration of grave risk of physical or psychological harm, or placing the child in an intolerable situation, at paragraph 138 of her reasons. Having been referred to the relevant authorities on the burden of proof and the construction of reg 16 as expounded by the High Court in DP v Commonwealth Central Authority (2001) 206 CLR 401, her Honour further particularised the parties’ evidence of the incidents of domestic violence and, at paragraph 142, noted the father’s denial of the majority of the mother’s allegations. In respect of this evidence her Honour said:... If his evidence were accepted the mother would be found to be the aggressor in their verbal and physical altercations and he the victim of numerous rapes. He said she was a martial arts expert and that as well as being violent to him, the mother threatened to harm the child on several occasions. It was his evidence that: ‘On some occasions [the mother’s] aggression has resulted in all out brawls in which we both suffered bodily injuries’. For example, he gave evidence he had twice suffered a black eye inflicted by the mother. At paragraph 145, the trial Judge set out the father’s account of the first domestic dispute between the parties and noted that the mother denied that evidence.

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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