LAWSON & LAWSON

Case [2017] FamCA 42

FAMILY COURT OF AUSTRALIA

LAWSON & LAWSON [2017] FamCA 42

FAMILY LAW – CHILD ABDUCTION – Hague Convention – Where the State and Commonwealth Central Authorities withdrew from the proceedings – Where the father was joined as a party and pursues the return of the children to the United Kingdom – Where the parties travelled to Australia with the children and subsequently separated – Where there is a dispute as to whether the parties agreed to emigrate to Australia or live in Australia for a defined period of time – Where the Court finds the parties agreed to emigrate to Australia – Where the Court finds the children were not habitually resident in the United Kingdom – Where the Court finds that the children were not wrongfully retained in Australia by the mother – Where the Court would have found the “defence” of sub regulation 16(3)(a)(ii) made out by the mother – Where the Court would not have exercised its discretion to return the children to the United Kingdom – Application dismissed.

FAMILY LAW – COSTS – Where the mother sought an order for costs against the State and Commonwealth Central Authorities – Where the final hearing had to be adjourned – Where regulation 7 precludes the Court from ordering costs against the Central Authority – Application dismissed.
Evidence Act 1995 (Cth) s 55
Family Law Act 1975 (Cth) s 111B
Family Law (Child Abduction Convention) Regulations 1986 (Cth) regs 1A, 2,7, 16
Hague Convention on Civil Aspects of International Child Abduction 1980
Migration Act 1958 (Cth) ss 102, 234

Department of Health and Community Services, State Central Authority & Casse (1995) FLC 92-629
H v H (Abduction: Acquiescence) [1996] 2 FLR 570
Lachmaiya v Department of Immigration and Ethnic Affairs (1994) 19 AAR 148
LK v Director-General, Department of Community Services (2009) 237 CLR 582
McNeil v Commissioner of Taxation (2003) 202 ALR 35
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449
Punter v Secretary for Justice [2007] 1 NZLR 40
R v MacFarlane [1993] 1 Qd R 202
R v Rg [2006] NSWSC 15
Re B (A Child) (Reunite International Child Abduction Centre and others intervening) [2016] AC 606
Re B (A Minor) (Abduction) [1994] 2 FLR 249
Re C (Abduction: (Consent) [1996] 1 FLR 414
Re F (A Minor) (Child Abduction) [1992] 1 FLR 548
Re H and Ors (Minors) (Sexual abuse: Standard of Proof) (1996) 1 All ER 1
Re K (Abduction: Consent) [1997] 2 FLR 212
Re R (Children) (Reunite International Child Abduction Centre and others intervening) [2016] AC 76
Re S(A minor) (Custody: Habitual Residence) [1998] AC 750

Regino & Regino (1995) FLC 92-587
Secretary, Department of Family and Community Service & Padwa (2016) FLC 93-701
Wenceslas & Director General, Department of Community Services (2007) FLC 93-321
Zotkiewicz & Commissioner of Police (No. 2) (2011) FLC 93-472

APPLICANT: Mr Lawson
RESPONDENT: Ms Lawson
FILE NUMBER: SYC 4401 of 2016
DATE DELIVERED: 2 February 2017
PLACE DELIVERED: Sydney
PLACE…

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AGLC
LAWSON & LAWSON [2017] FamCA 42
Case
[2017] FamCA 42
Decision Date

CaseChat Overview and Summary

The proceedings concerned an application by the father for the return of his children to the United Kingdom under the Hague Convention. The State and Commonwealth Central Authorities had withdrawn from the proceedings, and the father was joined as a party to pursue the children's return. The dispute arose after the parties travelled to Australia with the children and subsequently separated, with a disagreement as to whether they had agreed to emigrate to Australia or to reside there for a defined period.

The court was required to determine whether the children were habitually resident in the United Kingdom prior to their removal to Australia, and if so, whether their retention in Australia by the mother was wrongful under the Hague Convention. The court also considered whether any defences were available to the mother, and if it would have exercised its discretion to order the children's return. Additionally, the mother sought an order for costs against the State and Commonwealth Central Authorities.

McClelland J found that the parties had agreed to emigrate to Australia, evidenced by their decision to ship personal belongings from the UK to Australia, which was inconsistent with an intention to stay for only a defined period. The court further found that the children were not habitually resident in the United Kingdom at the time of their removal. Consequently, the court determined that the children were not wrongfully retained in Australia by the mother. Even if a defence under sub-regulation 16(3)(a)(ii) had been made out by the mother, the court indicated it would not have exercised its discretion to return the children to the United Kingdom.

The application for the children's return was dismissed. The mother's application for costs against the State and Commonwealth Central Authorities was also dismissed, as regulation 7 of the relevant rules precludes the court from ordering costs against a Central Authority.

Orders

Orders of the court

1.

The Form 2 Application filed 13 July 2016 is dismissed.

2.

The mother’s application for costs against the State and Commonwealth Central Authorities is 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

Taking a similar approach, in Re H and Ors,[35] Lord Nicholls relevantly stated:[35] Re H and Ors (Minors) (Sexual abuse: Standard of Proof) (1996) 1 All ER 1 at 16-17.When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability. Fraud is usually less likely than negligence. Deliberate physical injury is usually less likely than accidental physical injury... Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation. Although the result is much the same, this does not mean that where a serious allegation is in issue the standard of proof required is higher. It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred. The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established. (Emphasis added) In light of the circumstances to which I have referred, it is, in my view, improbable that the father provided false and misleading information on his incoming passenger card when he travelled to Australia with the mother and the children in November 2015. Accordingly, I find that the declaration contained in the incoming passenger card which the father signed upon entering Australia in November 2015, is indicative of the fact that as at that time the father intended to emigrate permanently to Australia. The most compelling evidence of the existence of a shared intention for the parties to emigrate to Australia with the children, albeit with the mother agreeing to a review, is the decision of the parties to ship their personal belongings from the UK to Australia. It was not in dispute that the anticipated time for the arrival in Australia of those items was between six to 12 weeks and at a cost of approximately £6000.[36] It is improbable that the parties would have taken that course of action if they had agreed to stay in Australia only for a defined period of six months. [36] Mother’s affidavit at Annexure S. In Re F (A Minor) the UK Court of Appeal held that, despite the fact that the parties had purchased return tickets, the trial judge was entitled to find that the parties had intended to emigrate from the UK to Australia. An important aspect of the trial judge’s findings was the fact that the parties had shipped 19 cases of their personal belongings to Australia. In that respect, Butler-Sloss LJ said:…the number of packing cases, in itself, is compelling evidence contrary to the suggestion of a holiday, even an extended one. The point about the tickets, in my judgement, is not sufficient to displace the evidence to the contrary.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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