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Randle & Randle

Randle & Randle

Case [2011] FamCA 830 27 September 2011

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FAMILY COURT OF AUSTRALIA

RANDLE & RANDLE

[2011] FamCA 830

FAMILY LAW - CHILDREN - Jurisdiction of Family Court - Whether applicable test forum non conveniens or best interests

FAMILY LAW - CHILDREN – Welfare jurisdiction – Whether power and discretion to make summary order for return of child to non-Convention country ought be exercised

Family Law Act 1975 (Cth)
Family Law (Child Abduction Convention) Regulations 1986 (Cth)
Hague Convention on the Civil Aspects of International Child Abduction

Agar v Hyde (2000) 201 CLR 552
B v B (2003) 31 Fam LR 7
Bank of Tokyo Ltd v Karoon [1987] AC 45
CSR Ltd v Cigna (1997) 189 CLR 345
De L v Director-General, New South Wales Dept of Community Services (1996) FLC 92-706
EJK v TSL (2006) 35 Fam LR 559
Goode & Goode (2006) FLC 93-286
In Re L (Minors) [1974] 1 WLR 250
Karim v Khalid (2007) 38 Fam LR 300
Marlborough Harbour Board v Charter Travel Co Ltd (1989) 18 NSWLR 223
Pagliotti & Hartner (2009) FLC 93-393
Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538
Zabini & Zabini [2010] FamCAFC 10
ZP v PS (1994) 181 CLR 639

APPLICANT:

Ms Randle

RESPONDENT:

Mr Randle

FILE NUMBER:

BRC

11866

2010

DATE REASONS DELIVERED:

27 October 2011

DATE ORDERS DELIVERED: 27 September 2011

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Kent J

HEARING DATE:

15 July, 8 August, 2 September and 27 September 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms McMillan SC

SOLICITOR FOR THE APPLICANT:

Ms Kerrie-Anne Craig of Piper Craig Henry Lawyers

COUNSEL FOR THE RESPONDENT:

Mr T North SC

SOLICITOR FOR THE RESPONDENT:

Ms Rachael Murray of Hopgood Ganim Lawyers

Orders

The application of Ms Randle for a summary order for the return of S Randle to the United Arab Emirates filed 30 June 2011 is dismissed.
That pursuant to s 68L(2), the interests of the child Master S Randle, born … April 2003 be independently represented by a lawyer and it is requested that Legal Aid Queensland make arrangements as soon as practicable to secure that independent representation of the child's interests.
That forthwith upon appointment by the said Legal Aid Queensland or otherwise the Independent Children’s Lawyer file a Notice of Address for Service.
That upon filing a Notice of Address for Service, the Independent Children’s Lawyer have leave to inspect and copy any and all material subpoenaed by the parties and released by the Court up to that date.
That within forty-eight (48) hours of notification of such appointment each party provide to the Independent Children’s Lawyer copies of all relevant documents relied upon by that party.
A report is to be prepared by a Family Consultant nominated by the Manager, Child Dispute Services.
For the purposes of completing the Family Report the Family Consultant has permission to inspect the Court file and all documents related to the issue of S’s residence.
The report writer has leave to read any document produced on subpoena once permission…

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 Randle & Randle

Details

AGLC: Randle & Randle [2011] FamCA 830
Case: [2011] FamCA 830
Decision Date: 27 September 2011

CaseChat Overview and Summary

In the Family Court of Australia, Ms Randle sought a summary order for the return of her child, S Randle, to the United Arab Emirates. The court was required to determine whether the applicable test was *forum non conveniens* or the best interests of the child, and whether it possessed the power and discretion to exercise its welfare jurisdiction to make a summary order for the child's return to a non-Convention country.

Kent J considered the principles governing the exercise of the court's jurisdiction in child-related matters, particularly concerning international relocation and the paramountcy of the child's welfare. The court examined the distinction between applications brought under the Hague Convention and those seeking summary return to non-Convention countries, noting that the latter requires a careful balancing of competing interests. The court's discretion in such matters is guided by the overarching principle of acting in the best interests of the child.

Ultimately, Kent J dismissed Ms Randle's application for a summary order for the child's return. The court ordered that the child's interests be independently represented by a lawyer, with arrangements to be made by Legal Aid Queensland. Further directions were given regarding the appointment and role of the Independent Children’s Lawyer, the preparation of a Family Report by a Family Consultant, and the attendance of the parties and the child at necessary appointments. Costs were reserved, and the matter was adjourned for a four-day trial commencing on 29 November 2011, with further trial directions to be fixed.

Orders

Orders of the court

The application of Ms Randle for a summary order for the return of S Randle to the United Arab Emirates filed 30 June 2011 is dismissed.

That pursuant to s 68L(2), the interests of the child Master S Randle, born … April 2003 be independently represented by a lawyer and it is requested that Legal Aid Queensland make arrangements as soon as practicable to secure that independent representation of the child's interests.

That forthwith upon appointment by the said Legal Aid Queensland or otherwise the Independent Children’s Lawyer file a Notice of Address for Service.

That upon filing a Notice of Address for Service, the Independent Children’s Lawyer have leave to inspect and copy any and all material subpoenaed by the parties and released by the Court up to that date.

That within forty-eight (48) hours of notification of such appointment each party provide to the Independent Children’s Lawyer copies of all relevant documents relied upon by that party.

A report is to be prepared by a Family Consultant nominated by the Manager, Child Dispute Services.

For the purposes of completing the Family Report the Family Consultant has permission to inspect the Court file and all documents related to the issue of S’s residence.

The report writer has leave to read any document produced on subpoena once permission to inspect has been granted to a party or the Independent Children’s Lawyer.

The parties shall attend (in the case of the Mother, by telephone if necessary) and ensure that the child, S Randle, attend all necessary appointments for the preparation of the Family Report.

10.

Costs of and incidental to this application are reserved to the trial judge.

11.

This matter is adjourned to a trial to be heard for four days commencing 29 November 2011 before the Honourable Justice Kent.

12.

This matter is adjourned to the Registry for trial directions on a date to be fixed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

Randle & Randle [2011] FamCA 830

Most Recent Citation

Chada & Davi [2021] FedCFamC2F 26

Cases Citing This Decision

Arterbury & Gujic [2024] FedCFamC1F 88
Citation 1 (Para 39)

…The father also sought to rely upon some selective commentary by Justice Kent about Shariah law in Randle & Randle [2011] FamCA 830 (“ Randle ”). However, that case concerned Country H and there is no evidence before me that the application of Shariah law in Country H is the same as the application of Shariah law i…
Chada & Davi [2021] FedCFamC2F 26
Citation 2 (Para 23)

…ralia, but she is currently living in India. I was referred to authority by Counsel for the Applicant, in particular, the decision of Randle & Randle [2011] FamCA 830 (per Kent J) (“ Randle ”) at [43] – [44]. The question of whether it is appropriate for the matter to proceed in Australia, or what is the most conve…
KEIRN & MOXEY [2015] FamCA 663
Citation 3 (Para 4)

…Counsel for the husband relied on the judgement of Kent J in Randle & Randle [2011] FamCA 830 (“ Randle ”).…
Killam & Loeng [2015] FamCAFC 41
Citation 4 (Para 2)

…ay in a final hearing “will be two years”. After making that submission counsel did acknowledge that in two similar cases being Randle & Randle [2011] FamCA 830 and Ryan & Russell [2013] FamCA 787 “early trials had been arranged and scheduled within months”.…
Zanda and Zanda [2014] FCCA 1326
Citation 5 (Para 3)

…j) Karim v Khalid (2007) 38 Fam LR 300; k) Minister of Immigration & Multicultural and Indigenous Affairs v B (2004) 219 CLR 365; l) Randle & Randle [2011] FamCA 830; m) Sampson v Hartnett (No.10) [2007] FamCA 1365 n) Director-General, Department of Community Services; Re Sophie [2008] NSWSC 1269; and o) JJT & CTT…
CLAYTON & BANT [2013] FamCA 790
Citation 6 (Para 18)

…its of the parenting case could not take place until the proposed trial dates of 8 October 2013. [2] As discussed and summarised in Randle & Randle [2011] FamCA 830.…
KELLETT & KELLETT [2012] FamCA 537
Citation 7 (Para 35)

…I was referred by Counsel for the father to the decision of Kent J in Randle & Randle [2011] FamCA 830. There his Honour agreed that ZP v PS (1994) 181 CLR 639 provided the relevant authority as follows: In determining an application for the speedy return of a child to another country, it may be material to conside…

See all citing cases →

Cases Cited

Zabini & Zabini [2010] FamCAFC 10
Citation 1 (Para 6)

…In Zabini & Zabini [2010] FamCAFC 10, Warnick J sitting as a single judge constituting the Full Court in an appeal from an interim parenting case observed: 1. The usual interim hearing for parenting orders involves fact-heavy material, full of contention that cannot be resolved on the papers, yet there is no cross-e…
Agar v Hyde [2000] HCA 41
Citation 2 (Para 4)

…conveniens . This would have been appropriate had a stay been the appropriate order to request following the High Court’s decision in Agar v Hyde (2000) 201 CLR 552. However, in a parenting case such as this where the child is present in Australia, the case law clearly indicates that that is not the correct test or a…
CSR Ltd v Cigna Insurance Australia Ltd [1997] HCA 33
Citation 3 (Para 1)

…nciples governing the making of such an order were set out by the majority of Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ in CSR Ltd v Cigna (1997) 189 CLR 345.…
ZP v PS [1994] HCA 29
Citation 4 (Para 4)

…ach to take (as Ms McMillan, in the event, subsequently accepted). The proper test is, in fact, the “best interests” test, as held in ZP v PS (1994) 181 CLR 639, rather than the Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 “clearly inappropriate forum” test associated with the common law principles of forum…
Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55
Citation 5 (Para 4)

…roper test is, in fact, the “best interests” test, as held in ZP v PS (1994) 181 CLR 639, rather than the Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 “clearly inappropriate forum” test associated with the common law principles of forum non conveniens . This much is clear on the case law; however, given tha…
National Mutual Holdings Pty Ltd v The Sentry Corporation [1990] FCA 510
Citation 6 (Para 4)

…making a parenting Order as S is within its jurisdiction. [16] At 392, citing Gummow J in National Mutual Holdings Pty Ltd v Sentry Corporation (1989) 22 FCR 209 at 232. [17] At 392.…
National Mutual Holdings Pty Ltd v Sentry Corporation [1989] FCA 274
Citation 7 (Para 4)

…b Emirates cannot prevent this Court from effectively making a parenting Order as S is within its jurisdiction. [16] At 392, citing Gummow J in National Mutual Holdings Pty Ltd v Sentry Corporation (1989) 22 FCR 209 at 232. [17] At 392.…
[1987] AC 45 [1987] AC 45
Citation 8 (Para 6)

…ve. The High Court in Cigna (supra), in considering the meaning of this phrase, approved of Robert Goff LJ’s comments in Bank of Tokyo Ltd v Karoon [1987] AC 45 at 60, where His Honour held that this test would only be satisfied, “…if there is nothing to be gained by them over and above what may be gained in lo…
[1974] 1 WLR 250 [1974] 1 WLR 250
Citation 9 (Para 2)

…That interpretation is consistent with the approval of Mason CJ, Toohey and McHugh JJ in ZP v PS of Buckley LJ’s comments in In Re L (Minors) [1974] 1 WLR 250 at 264-265: To take a child from his native land, to remove him to another country where, maybe, his native tongue is not spoken, to divorce him from the soc…

Legislation Cited

Family Law (Child Abduction Convention) Regulations 1986 (Cth)
1 mention
Family Law Act 1975 (Cth)
1 mention (from Para 2)