KELLETT & KELLETT - [2012] FamCA 537

FAMILY COURT OF AUSTRALIA

KELLETT & KELLETT

[2012] FamCA 537

FAMILY LAW - CHILD ABDUCTION – Child brought to Australia – Where the father removed the child from Indonesia and was apprehended by police when attempting to remove the child from Australia – Where Indonesia is not a signatory to the Hague Convention – Matter to be determined according to the best interests of the child by way of summary hearing – Where the child could have the benefit of both of his parents being in the same geographic proximity if he lived in Indonesia – Where there are grave concerns about the father’s willingness to facilitate the child’s relationship with the mother – Where there are domestic violence proceedings against the husband in Indonesia – Where there is no evidence to suggest that the courts of Indonesia will not properly inquire into and determine the child’s permanent custody – Orders that the child live with the mother in Indonesia

FAMILY LAW - EVIDENCE – Expert Evidence – Where the father relies on an affidavit purporting to give expert evidence about the law applicable in Indonesia, the processes which will be applied, and the likely consequences for the father of his return to Indonesia – Where the deponent is the father’s lawyer in the substantive proceedings in Indonesia – Where the Family Law Rules 2004 (Cth) have not been complied with – Where the conclusions contained in the expert evidence are broad, supported by no facts, and rely on the deponent’s subjective experience – Where the evidence is partisan in nature – Found that little or no weight should be given to the opinions expressed by the deponent

Evidence Act 1995 (Cth) s 79
Family Law Act 1975 (Cth) ss 69ZQ(1), 69ZT(3)
Family Law Rules 2004 (Cth) rr 15.52(2), 15.59(1), 15.62

In re F (Abduction: Custody Rights) [1991] Fam 25
Kwon & Lee (2006) FLC 93-287
Karim & Khalid (2008) 38 Fam LR 300
McGregor & McGregor [2012] FamCAFC 69
ZP v PS (1994) 181 CLR 639

APPLICANT:

Ms Kellett

RESPONDENT:

Mr Kellett

FILE NUMBER:

SYC

3121

2012

DATE DELIVERED:

13 July 2012

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Rees J

HEARING DATE:

9 July 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

KDB Holmes Solicitors

COUNSEL FOR THE RESPONDENT:

Mr Dura

SOLICITOR FOR THE RESPONDENT:

Patti Chong Lawyers

Orders
IT IS ORDERED

That all prior orders made in these proceedings are discharged.
That, pending the determination of any proceedings in Indonesia relating to the child, the child L Kellett born … July 2003 (“the child”) live with Ms Kellett (“the mother”).
That the mother is permitted forthwith to remove the child permanently from the Commonwealth of Australia and return with the child to Indonesia.
That Mr Kellett (“the father”) spend time with the child as agreed or as ordered by a Court of competent jurisdiction in Indonesia.
That the father forthwith deliver to the mother all of the child’s original current passports in his possession.
That until…

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: KELLETT & KELLETT [2012] FamCA 537
Case: [2012] FamCA 537
Decision Date: 13 July 2012

CaseChat Overview and Summary

In the matter of *Kellett & Kellett*, Rees J of the Family Court of Australia considered a dispute concerning a child brought to Australia by the father. The father was apprehended by police while attempting to remove the child from Australia. Crucially, Indonesia, the child's country of habitual residence, is not a signatory to the Hague Convention. The court was therefore required to determine the matter according to the best interests of the child through a summary hearing.

The primary legal issues before the court were whether the child should live in Australia or return to Indonesia, and the weight to be given to expert evidence presented by the father regarding Indonesian law and processes. The father sought to rely on an affidavit from his Indonesian lawyer concerning the legal proceedings in Indonesia and their likely consequences for him. However, this affidavit did not comply with the Family Law Rules 2004 (Cth) and contained broad, unsubstantiated, and partisan opinions.

Rees J reasoned that the child could benefit from the proximity of both parents if he lived in Indonesia. The court noted grave concerns about the father's willingness to facilitate the child's relationship with the mother and the existence of domestic violence proceedings against the father in Indonesia. Given the lack of compliance with procedural rules and the partisan nature of the father's expert evidence, the court found that little or no weight should be given to the opinions expressed in the affidavit. The court concluded that there was no evidence to suggest that Indonesian courts would not properly inquire into and determine the child's permanent custody.

Consequently, the court ordered that all prior orders be discharged and that, pending determination of proceedings in Indonesia, the child live with the mother. The mother was permitted to remove the child permanently from Australia and return to Indonesia. The father's time with the child was to be as agreed or ordered by an Indonesian court. The father was also ordered to deliver the child's passports to the mother and was restrained from applying for a passport for the child. The Australian Federal Police were requested to remove the child from the Airport Watch List and deliver any passports in their possession to the mother.

Orders

Orders of the court

IT IS ORDERED

That all prior orders made in these proceedings are discharged.

That, pending the determination of any proceedings in Indonesia relating to the child, the child L Kellett born … July 2003 (“the child”) live with Ms Kellett (“the mother”).

That the mother is permitted forthwith to remove the child permanently from the Commonwealth of Australia and return with the child to Indonesia.

That Mr Kellett (“the father”) spend time with the child as agreed or as ordered by a Court of competent jurisdiction in Indonesia.

That the father forthwith deliver to the mother all of the child’s original current passports in his possession.

That until further order the father is restrained from applying for a passport in the name of or including the child.

That the Court requests that the Australian Federal Police remove the name of the child from the Airport Watch List at all points of international arrivals and departures in Australia.

That the Court requests that the Australian Federal Police forthwith deliver to the mother any of the child’s original current passports in their possession.

That pursuant to Sections 65DA(2) and 62B the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

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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