Marlow and Birkin - [2017] FCCA 2781

FEDERAL CIRCUIT COURT OF AUSTRALIA

MARLOW & BIRKIN

[2017] FCCA 2781

Catchwords:
FAMILY LAW – Mother removes child from Commonwealth of Australia – Mother seeks to prevent order for child’s return relying on Child Protection Convention – Court’s jurisdiction regulated but otherwise exercisable.

Legislation:

Family Law Act 1975 ss.65D, 67ZC, 68B, 69H, 114(3) and Part VII and Part XIIIAA

Cases cited:

Alhange & Alfasi [2017] FamCA 650
Bunyon & Lewis (No.3) [2013] FamCA 888

Duckworth & Jamieson [2014] FamCA 308

White & Green and Ors (No.2) [2009] FamCA 237

Applicant:

MS MARLOW

Respondent:

MR BIRKIN

File Number:

BRC 4198 of 2013

Judgment of:

Judge Curtain

Hearing date:

10 July 2017

Date of Last Submission:

September 2017

Delivered at:

Melbourne

Delivered on:

17 November 2017

REPRESENTATION

Counsel for the Applicant:

Mr Andrew Barbayannis

The Respondent appearing on his own behalf
Counsel for the Independent Children's Lawyer:	Mr Lino Marchetti

ORDERS

That order 10 of orders made 5 April 2016 and order 13 of orders made 23 February 2017 be discharged and the Mother shall forthwith do all things necessary and sign all necessary documents to ensure that X born (omitted) 2013 (“X”) is returned to reside with her in the Commonwealth of Australia.
That all prior orders made by consent on 10 July 2017 remain in full force and effect and in particular order 6, that Y shall remain with the Father in Australia when the Mother travels to (country omitted) to ensure the return of X.
That these proceedings be listed for hearing on 23 May 2018 for the Mother to “show cause” why she should not be prosecuted in relation to the alleged breach of s. 65Y or s. 65Z of the Family Law Act, 1975 (Cth) and to consider generally the parents’ compliance with all prior orders of
this court.

IT IS NOTED that publication of this judgment under the pseudonym Marlow & Birkin is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

BRC 4198 of 2013

MS MARLOW

Applicant

And

MR BIRKIN

Respondent

REASONS FOR JUDGMENT

Introduction

This is a narrow dispute regarding section 69E and Part XIIIAA (in particular section 111CD) of the Family Law Act 1975 (Cth) (“The Act”). The parents have a young child X who was born on (omitted) 2013, and is therefore aged 4 years. She currently resides with the Maternal Grandparents in (country omitted), which was organised (it appears) surreptitiously by the Applicant Mother. The child is an Australian citizen by birth.

Background

The Applicant Mother Ms Marlow was born on (omitted) 1983, in (country omitted). She came to Australia in 2002 to study (course omitted) and has resided here ever since. I am advised she is a citizen of Australia.
The Respondent Father Mr Birkin was born on (omitted) 1982. He came to Australia in 2006 when he was aged 24 years and I am told he is an Australian citizen and he resides here.
The Mother alleges the parties…

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 Marlow and Birkin

Details

AGLC: Marlow and Birkin [2017] FCCA 2781
Case: [2017] FCCA 2781
Decision Date: 17 November 2017

CaseChat Overview and Summary

In the matter of *Marlow and Birkin*, heard before Judge Curtain, the dispute concerned the welfare and location of a child, X, born in 2013. The orders indicate a disagreement between the Mother and the Father regarding X's residence and the Mother's actions in relation to X.

The court was required to determine whether to discharge previous orders concerning X's return to Australia and to ensure X resided with the Mother in the Commonwealth of Australia. Furthermore, the court needed to consider the continued effect of prior consent orders, specifically regarding the child Y remaining with the Father while the Mother travelled internationally to facilitate X's return. The court also had to address the Mother's potential prosecution for alleged breaches of sections 65Y or 65Z of the *Family Law Act 1975* (Cth) and to generally assess the parents' compliance with all existing court orders.

Judge Curtain ordered the discharge of previous orders and mandated that the Mother take all necessary steps to ensure X's return to reside in Australia. Crucially, prior consent orders, including one stipulating that Y remain with the Father during the Mother's travel for X's return, were affirmed. The proceedings were adjourned to a future date for the Mother to demonstrate cause why she should not face prosecution for alleged breaches of the *Family Law Act*, and for a general review of the parents' adherence to court directives.

Orders

Orders of the court

That order 10 of orders made 5 April 2016 and order 13 of orders made 23 February 2017 be discharged and the Mother shall forthwith do all things necessary and sign all necessary documents to ensure that X born (omitted) 2013 (“X”) is returned to reside with her in the Commonwealth of Australia.

That all prior orders made by consent on 10 July 2017 remain in full force and effect and in particular order 6, that Y shall remain with the Father in Australia when the Mother travels to (country omitted) to ensure the return of X.

That these proceedings be listed for hearing on 23 May 2018 for the Mother to “show cause” why she should not be prosecuted in relation to the alleged breach of s. 65Y or s. 65Z of the Family Law Act, 1975 (Cth) and to consider generally the parents’ compliance with all prior orders of

this court.

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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