APPEARANCES: Mr P Davis of Counsel, instructed by, Maria Barbayannis and Associates, Barristers and Solicitors, 370 Clayton Road, Clayton Vic 3168 appeared on behalf of the Appellant Mother.

Ms R Stoikovska of Counsel, instructed by, Victorian Government Solicitor, Level 25, 121 Exhibition Street, Melbourne Vic 3000, appeared on behalf of the Respondent

HZ and STATE CENTRAL AUTHORITY
SA24 of 2006
CORAM:  KAY, COLEMAN & WARNICK JJ
DATE OF HEARING:  30 May 2006
DATE OF JUDGMENT:               7 June 2006

Catchwords: CHILD ABDUCTION - Hague Convention - 3 children brought to Australia from Greece by their mother and wrongfully retained - Allegations of domestic violence by the father - Mother claimed there was a grave risk of physical or psychological harm or that the children would be placed in an intolerable situation if returned to Greece - She claimed further that the eldest child aged 8 objected to being returned - Mother intended to reside in accommodation remote from the father upon return - No evidence led that the Greek authorities would be unable to provide mother and children with appropriate protection upon return to Greece - Trial Judge held it was not appropriate to take account of child's wishes given her young age - Trial Judge's finding that exceptions not made out open to her on the evidence -Appeal dismissed - Children to be returned to Greece.

This is the mother’s appeal against orders made by Bennett J on 11 April 2006 requiring the return to Greece of three children, C, D and E pursuant to the provisions of the Family Law (Child Abduction Convention) Regulations 1986.

Background

In December 1995 SD married HZ in Greece. There were three children born of the marriage, C born in May 1998, D born in June 2001 and E born in December 2002.

The father was born in Greece and the mother born in Australia of Greek parents. They met in Greece shortly prior to their marriage. They made their home together in Greece and all of the children were born and raised in Greece. Throughout their marriage the mother and children lived at the home of the father’s parents.

In June 2005 the mother brought the children to Australia. She told the father, and he believed, that she and the three children were to spend a ten week holiday with her family and would return to Greece on pre-paid airline tickets scheduled to depart Melbourne on 31 August 2005.

On or about 30 June 2005 she told the father that she would not return with the children to Greece. She then cancelled the return air bookings and enrolled C at school in…

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.

Continue reading HZ & State Central Authority

Details

AGLC: HZ & State Central Authority [2006] FamCA 466
Case: [2006] FamCA 466
Decision Date: 7 June 2006

CaseChat Overview and Summary

The Full Court of the Family Court of Australia, comprising Kay and Coleman JJ, considered an appeal concerning the relocation of a child. The primary dispute involved the father, HZ, seeking to relocate with the child to Queensland, a proposal opposed by the mother, who was the respondent to the appeal. The original orders had permitted the relocation, and the mother sought to overturn this decision.

The central legal issue before the Full Court was whether the primary judge erred in finding that the proposed relocation was in the child's best interests. This required the court to assess whether the primary judge had properly applied the principles of the *Family Law Act 1975* (Cth), particularly section 60CC, which outlines the paramount consideration of the child's best interests. The court also considered whether the primary judge had given adequate weight to the various factors relevant to this determination, including the child's relationship with each parent, the child's age, and the practicalities of the proposed move.

The Full Court found that the primary judge had made several errors in their assessment of the child's best interests. Specifically, the court determined that the primary judge had failed to adequately consider the impact of the relocation on the child's relationship with the mother and had not sufficiently explored alternative arrangements that might have preserved that relationship. The court reiterated the importance of a balanced consideration of all relevant factors under section 60CC and cautioned against an overly optimistic view of the practicalities of long-distance parenting arrangements.

Consequently, the Full Court allowed the appeal, set aside the original orders, and remitted the matter to the Federal Circuit and Family Court of Australia for redetermination.

Orders