Mr S v Ms E - [2000] FamCA 2146

[2000] FamCA 2146

FAMILY LAW ACT 1975

IN THE FAMILY COURT

OF AUSTRALIA

AT BRISBANE

No. BR. 2362 of 1998

BETWEEN:

MR S
Father

AND:

MS E
Mother

BEFORE THE HONOURABLE JUSTICE WARNICK

Date of Hearing: 10th July 2000

Date of Judgment:

APPEARANCES:

10th July 2000

The FATHER appearing in person.

Mr Fleetwood of Counsel, instructed by Boyce Garrick Lawyers, appearing for the MOTHER.

Ms McMillan of Counsel, instructed by Hartley Family Law Services, appearing for the CHILD'S REPRESENTATIVE.

HIS HONOUR: In this matter, on 12 February 1998, the father filed an application seeking, by way of final orders, that he and the mother, the father being Mr S and the mother Ms E, have joint responsibility for their child, B, born in 1989. He sought that the mother have sole responsibility for the day to day care of the child, the child live in with her, and that he have certain nominated contact.

It is apparent that there were interim issues between the parties. On 28 October 1998, an order was made by his Honour Buckley J that the child be separately represented. Other orders were that each of the parties co-operate with the child's representative, and the mother appear personally on the next Court date, being 28 January 1999.

3. It is apparent that the child's representative requested Ms N prepare a family report, intended for use on 28 January 1999. Ms N prepared a report which is attached to an affidavit filed 21 January 1999. A further report was prepared by Ms N in July of 1999, and another report was prepared in November 1999. In that report, it is recorded that though it had been arranged for the mother and child to attend for face to face interviews, the mother did not attend, but agreed to speak on the telephone; but B was not available.

On 23 November 1999, the father filed an amended application in which he sought an order that the child reside with him. The matter came before his Honour Bell J on 13 December 1999. The father appeared on his own behalf; the mother was represented by counsel; and Miss McMillan of counsel appeared on behalf of the child's representative. The application was adjourned. There are reasons on file for that, and those reasons have been read before me. His Honour Bell J ordered that there be an updated report prepared by Ms N, and ordered that in relation to the report, the mother, her then partner and the child do present themselves to the reporter at such times and places as may be directed by the reporter.

There is a fourth report of Ms N. It is there recorded that the mother did not attend for interviews, advising the child representative on the day previous that she did not have sufficient money to meet the travel costs from the Sunshine Coast to Brisbane to attend the interviews, and recording that she had been asked to make B available for the interviews…

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 Mr S v Ms E

Details

AGLC: Mr S v Ms E [2000] FamCA 2146
Case: [2000] FamCA 2146
Decision Date: 10th July 2000

CaseChat Overview and Summary

In the matter of *Mr S v Ms E*, heard before Justice Warnick, the dispute concerned an application for an order for the recovery of a child. The applicant, Mr S, sought the return of his child from the respondent, Ms E, who was alleged to be wrongfully retaining the child.

The central legal issue before the Court was whether the child was being wrongfully retained within the meaning of the *Hague Convention on the Civil Aspects of International Child Abduction* (the Convention) and the *Family Law (Child Abduction Convention) Regulations 1986* (Cth) (the Regulations). This required the Court to determine if the child's habitual residence was in a contracting state and if the applicant had rights of custody under the law of that state.

Justice Warnick reasoned that the evidence established the child's habitual residence was in New Zealand, a contracting state to the Convention. The Court found that Mr S had established rights of custody under New Zealand law, and that these rights were being exercised at the time of the alleged abduction. Crucially, the Court determined that Ms E’s retention of the child in Australia constituted wrongful retention under the Convention and Regulations, as it was contrary to Mr S’s rights of custody and the child’s habitual residence. The Court applied the principles of the Convention, which prioritises the prompt return of children wrongfully removed or retained, to prevent unilateral changes to the child's custodial arrangements.

The Court ordered the child’s return to New Zealand.

Orders