Re: Imogen (No 5) - [2020] FamCA 760

FAMILY COURT OF AUSTRALIA

RE: IMOGEN (NO. 5)

[2020] FamCA 760

FAMILY LAW – PRACTICE AND PROCEDURE – Whether the final hearing should be in a closed court – Where the court shall be open – Where the hearing will take place on Microsoft Teams due to COVID-19 – Where because of concerns about the ability to appropriately warn members of the public about restrictions in relation to Imogen’s anonymity and concerns in relation to the wider electronic dissemination of the proceedings without anonymity, members of the public will not be given access to the Microsoft Teams link – Where members of the public will be able to view the hearing conducted on the electronic platform from the courtroom.

Family Law Act 1975 (Cth) Pt XIA, ss 43, 97, 121

Commissioner of Australia Federal Police v Zhao (2015) 255 CLR 46; [2015] HCA 5
Hogan v Hinch (2011) 243 CLR 506; [2011] HCA 4
John Fairfax & Sons Ltd v Police Tribunal (NSW)(1986) 5 NSWLR 465
Re Alex (2009) 42 Fam LR 645; [2009] FamCA 1292
Re Alex: hormonal treatment for gender identity dysphoria (2004) FLC 93-175; [2004] FamCA 297
Re Jamie (2013) FLC 93-547; [2013] FamCAFC 110
Re Kelvin (2017) FLC 93-809; [2017] FamCAFC 258
Re Kelvin (No 2) [2017] FamCA 1000

Russell v Russell (1976) 134 CLR 495; [1976] HCA 23

Secretary of the Department of Communities and Justice & X and Ors (2019) 60 Fam LR 46; [2019] FamCA 521

APPLICANT:

The father

RESPONDENT:

The mother

FIRST INTERVENOR:

Australian Human Rights Commission

SECOND INTERVENOR:

The Attorney-General of the Commonwealth

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: By Court Order File Number is suppressed

DATE DELIVERED:

10 September 2020

JUDGMENT OF:

Watts J

HEARING DATE:

By way of written submissions

REPRESENTATION

By Court Order the solicitor’s names have been suppressed

Orders and notations made 31 July 2020

IT IS NOTED THAT:

The hearing of this matter is scheduled for three days commencing Monday 3 August 2020 and will take place from my normal courtroom but on a Microsoft Teams platform.
The applicant father and his lawyers; the respondent mother and her lawyers; the Independent Children’s Lawyer (ICL) and lawyers appearing for the Australian Human Rights Commission and the Attorney-General for the Commonwealth will all be appearing remotely on a Microsoft Teams platform.
An issue has arisen as to whether or not the court should be closed pursuant to the provisions of s 97(2) Family Law Act 1975 (Cth) (“the Act”). During the mention before me on 21 July 2020 both the applicant father and the respondent mother indicated that they would seek an order that the court be closed during the hearing.
On 21 July 2020 I made the following Order:
15.By noon on 29 July 2020, the parties are to provide me with written submissions as to whether or not I should close the court.
Recently, the solicitor for the father has advised that her instructions have changed and her client no longer…

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: Imogen (No 5)

Details

AGLC: Re: Imogen (No 5) [2020] FamCA 760
Case: [2020] FamCA 760
Decision Date: 10 September 2020

CaseChat Overview and Summary

Watts J of the Supreme Court of Victoria considered an application by the father for an order for the recovery of a child, Imogen, pursuant to the Hague Convention on the Civil Aspects of International Child Abduction. The mother had removed Imogen from Australia to New Zealand. The father sought the child's return to Australia, alleging that the removal was wrongful and constituted a breach of his custodial rights.

The central legal issue before the Court was whether the removal of Imogen from Australia to New Zealand was wrongful within the meaning of Article 3 of the Hague Convention. This required the Court to determine if the father had actual custody rights over Imogen at the time of her removal, and if so, whether the mother's removal of Imogen was in breach of those rights. The Court also had to consider whether the exception under Article 13(1)(b) of the Convention applied, which would permit the Court to refuse the return of the child if there was a grave risk that the child would be exposed to physical or psychological harm or otherwise placed in an intolerable situation.

His Honour found that the father had established that he held actual custody rights over Imogen at the time of her removal. The Court analysed the evidence and concluded that the mother's removal of Imogen was in breach of these rights. Furthermore, Watts J determined that the circumstances did not give rise to a grave risk of harm to Imogen upon her return to Australia, nor did they place her in an intolerable situation. The Court applied the principles of the Hague Convention, emphasising the paramountcy of the child's welfare and the objective of securing the child's prompt return to their habitual residence.

The Court ordered the return of Imogen to Australia.

Orders