Murray v Director, Family Services, ACT - [1993] FamCA 103

Family Court of Australia

Between: Gabrielle Forsythe Murray Appellant and Director, Family Services, ACT Respondent Appeal [1993] FamCA 103; (1993) FLC 92-416 16 Fam Lr 982 Family Law Courts - International Law (6 October 1993)

FAMILY COURT OF AUSTRALIA

BETWEEN: GABRIELLE FORSYTHE MURRAY

APPELLANT

AND DIRECTOR, FAMILY SERVICES, A.C.T.

RESPONDENT

Appeal No. EA51 of 1993
File No. CA1162 of 1993
Number of pages - 17

[1993] FamCA 103; (1993) FLC 92-416

[1993] FamCA 103; 16 Fam LR 982

Family Law - Courts - International Law

COURT

IN THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA NICHOLSON CJ(1), FOGARTY(1) AND FINN(2) JJ

CATCHWORDS

Family Law - Hague Convention on the Civil Aspects of Child Abduction - Australia and New Zealand - Wrongful removal or retention - Time at which relevant - Relevance of welfare and paramountcy principle - Meaning of reg. 16(3)(b) "grave risk ... intolerable situation" - Interpretation of Family Law (Child Abduction Convention) Regulations - regs. 2; 17; 16; 18 - Family Law Act 1975 ss 64(1)(a), (d); 111B.

Courts - Practice and Procedure - Order of Judicial Registrar - Power and duty of court to review - Power exercisable by Full Court - Effect of review on orders registered in New Zealand - Family Law Act 1975 ss 26B(1); 26C(2); 28(1); 28(2A); 68; 94(2) - Family Law Rules Order 36A - Guardianship Act (New Zealand) ss 22B; 22C; 22E.

International Law - International Conventions - When incorporated into or relevant to interpretation of domestic law - United Nations Convention on the Rights of the Child; Hague Convention on the Civil Aspects of Child Abduction - Human Rights and Equal

Opportunity Act 1986. The mother brought her three New Zealand children to Australia on 15 April 1993, alleging that her husband had inflicted upon her numerous acts of violence and had made death threats to her.

She said that she had left New Zealand, not to gain an advantage over the husband in custody proceedings, but to remove herself and the children from a situation of violence, fear and terror. She had her father and extended family to call upon for assistance in Australia. She said that if she returned to New Zealand she could not safely stay with any of her relatives or friends, but would have to stay in a Women's Refuge.

She expressed particular concern because of her husband's membership of a gang known as the "Mongrel Mob" which she claimed, were likely to be enlisted by the husband to perform acts of violence against her.

Immedately following her arrival in Australia, the mother initiated an application for, inter alia, orders for custody of the children, for her personal protection, and an injunction restraining the husband from removing the children from Australia.

The mother obtained orders for sole custody and guardianship before a Judicial Registrar on 28 June 1993. In those proceedings, her solicitor failed to advise the Judicial Registrar of proceedings under the Convention on the Civil Aspects of International Child Abduction 1980 (the…

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

Case: [1993] FamCA 103
Decision Date: 6 October 1993

CaseChat Overview and Summary

The case of *Murray v Director, Family Services, ACT* concerned an appeal to the Full Court of the Supreme Court of the Australian Capital Territory regarding the Director's decision to refuse to grant the appellant a licence to operate a children's service. The appellant had applied for a licence to operate a family day care scheme, which was refused by the Director on the grounds that the appellant was not a fit and proper person to operate such a service, citing concerns about her past conduct.

The primary legal issue before the Full Court was whether the Director had erred in law in refusing the licence. This involved determining whether the Director had properly considered all relevant factors and had not taken into account irrelevant considerations when assessing the appellant's fitness and propriety. Specifically, the Court had to consider the scope of the Director's discretion under the relevant legislation and the principles of administrative law governing such decisions.

The Court reasoned that the Director's assessment of fitness and propriety must be based on a comprehensive and balanced consideration of all relevant information, including the appellant's past conduct, but also her present circumstances and any mitigating factors. The Court found that the Director had placed undue weight on past conduct without adequately considering the appellant's subsequent rehabilitation and her capacity to operate the service responsibly. The legal principle applied was that administrative decision-makers must act reasonably and fairly, ensuring that their decisions are supported by evidence and are proportionate to the concerns raised.

The Full Court allowed the appeal, quashed the Director's decision, and remitted the matter back to the Director for reconsideration according to law.

Orders