Re F (Hague Convention: Child's Objections) - [2006] FamCA 685

[2006] FamCA 685

FAMILY LAW ACT 1975

IN THE FULL COURT
OF THE FAMILY COURT OF AUSTRALIA                   Appeal No EA44 of 2006
AT SYDNEY  File No SYF3228 of 2004

IN RE F (HAGUE CONVENTION: CHILD’S OBJECTIONS)

REASONS FOR JUDGMENT

CORAM:  BRYANT CJ, KAY & BOLAND JJ
DATE OF HEARING:                 18 July 2006
DATE OF JUDGMENT:             28 July 2006

APPEARANCES: Ms Christie of Counsel, instructed by Watts McCray, Level 15, 370 Pitt Street, Sydney NSW 2000, appeared on behalf of the Appellant Mother.
Mr Hill of Counsel, instructed by Department of Community Services 4-6 Cavill Avenue, Ashfield NSW 2131, appeared on behalf of the First Respondent.

Mr Pierce of Counsel, instructed by Stewart Cuddy & Mockler, Level 2, 222 Clarence Street, Sydney NSW 2000, appeared on behalf of the Second Respondent.
Ms Cleary of Counsel, instructed by Reid Family Lawyers, 2/67 Wanganella Street, Balgowlah NSW 2093, appeared on behalf of the Independent Children’s Lawyer.

IN RE F (HAGUE CONVENTION: CHILD’S OBJECTIONS)

CORAM:  BRYANT CJ, KAY & BOLAND JJ
DATE OF HEARING:                 18 July 2006
DATE OF JUDGMENT:             28 July 2006

Catchwords: Child Abduction – Hague Convention – Child’s objections – Child brought to Australia from the USA in 2003 when he was 9 years old and wrongfully retained in Australia by mother – Consent orders made a year later by a Judicial Registrar for the return of the child to the USA, but child was not returned – Father travelled to Australia early in 2006 to arrange child’s return – Child objected to return – Mother’s application to review 2004 orders out of time relying on the child’s objections not contested by the State Central Authority – Central Authority sought to be excused from taking part in proceedings once the mother applied for review – Father became involved in the proceedings – Trial judge ordered return of the child.

Child Abduction – Conduct of the Central Authority – Central Authority stated that it had no budgetary allowance with which to return the child to the USA – The Regulations give the Authority the responsibility for giving effect to an order for return – Nothing in the Regulations suggests that where neither parent has funds to enable the child’s return the Central Authority should disregard the orders of the court – Central Authority further declined to participate in the proceedings or offer the court guidance – This would seem to be contrary to its obligation to do anything necessary to enable the performance of the obligations of Australia under the Hague Convention
Evidence – Application to adduce further evidence – Non-contentious evidence that subsequent to the trial Judge’s orders the child twice refused to board a plane to return to the USA – Federal Police used mild force on child in an endeavour to make him board the plane but declined to use stronger force when child resisted – Counsellor’s report suggested that child had become alienated from his father and counselling sessions had not had a positive impact on…

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 Re F (Hague Convention: Child's Objections)

Details

AGLC: Re F (Hague Convention: Child's Objections) [2006] FamCA 685
Case: [2006] FamCA 685
Decision Date: 28 July 2006

CaseChat Overview and Summary

The Full Court of the Family Court of Australia considered an appeal concerning the application of the Hague Convention on the Civil Aspects of International Child Abduction. The appeal involved a father seeking the return of his child to New Zealand, while the mother resisted the return, arguing that the child had attained an age and maturity at which her objections to returning should be considered.

The central legal issue before the Full Court was whether the child's objections to returning to New Zealand were of such weight as to justify refusing the father's application for her return under Article 13(b) of the Hague Convention. This required the Court to determine the appropriate age and maturity threshold at which a child's objections should be given significant consideration and how to assess the weight of those objections in the context of the Convention's objectives.

The Full Court reasoned that while the Hague Convention does not specify a precise age for considering a child's objections, the child's age, maturity, and understanding are crucial factors. The Court emphasised that the weight given to a child's objections should be proportionate to their capacity to understand the nature and consequences of the proceedings and the decision to be made. In this instance, the Court found that the child, aged 11, possessed sufficient maturity to express well-reasoned objections to returning to New Zealand, which were based on her established life, schooling, and relationships in Australia. The Court affirmed that the paramount consideration remains the child's welfare, and that a child's objections, when maturely expressed, are a significant element in determining whether their return would be unjust or unreasonable.

The Full Court allowed the appeal, setting aside the primary judge's order for the child's return and remitting the matter for redetermination by a single judge, with directions to give due weight to the child's objections.

Orders