FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Reger & Hanney [2023] FedCFamC1F 805
File number(s): SYC 6696 of 2023 Judgment of: CHRISTIE J Date of judgment: 20 September 2023 Catchwords: FAMILY LAW - EX TEMPORE – HAGUE – INTERIM HEARING – Habitual residence – Application for the child to be returned to Australia from the United States of America – Where the child is in a non-Convention country – Where the applicant asserts that the child was habitually resident in Australia prior to the respondent taking the child to the United States of America – Where the respondent asserts that the child was and always has been habitually resident to the United States of America – Declaration that the child is habitually resident in Australia – Jurisdiction – Where the respondent has filed proceedings in the State B District Court – Forum non conveniens – Whether Australia is a clearly inappropriate forum – Finding that the Federal Circuit and Family Court of Australia (Div 1) is not a clearly inappropriate forum – Declaration that the Federal Circuit and Family Court of Australia (Div 1) has jurisdiction over the subject child – Interim parenting – Orders for the children to live with the applicant in Australia – Orders for the applicant to have sole parental responsibility – Orders for the children to have electronic communication with the respondent – Orders for the children to have supervised time with the Respondent in the event he travels to Australia – Orders in relation to the preparation of an Expert Report. Legislation: Family Law Act 1975 (Cth) Pt XIIIAA, Div 4, ss 4AB, 69E, 111CD
Convention on the Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in respect of Parental Responsibility and Measures for the Protection of Children
Hague Convention on the Civil Aspects of International Child Abduction
Cases cited: Cimorelli & Wenlack [2020] FamCAFC 58
Goode& Goode (2006) FLC 93-286
Henry v Henry (1996) 185 CLR 571
Kwon & Lee (2006) FLC 93-287
LK v Director General Department of Community Services (2009) 237 CLR 582
Re B (minors: abduction) (No 2) [1993] 1 FLR 993
Division: Division 1 First Instance Number of paragraphs: 121 Date of hearing: 20 September 2023 Place: Sydney Solicitor for the Applicant: Legal Aid NSW Solicitor for the Respondent: Hillcrest Family Lawyers Pty Ltd ORDERS
SYC 6696 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS REGER
Applicant
AND: MR HANNEY
Respondent
ORDER MADE BY:
CHRISTIE J
DATE OF ORDER:
20 SEPTEMBER 2023
THE COURT ORDERS THAT:
Declaration / jurisdiction
1.The child X born 2021 is declared to be habitually resident in Australia.
2.Pursuant to s 111CD(1)(e) of the Family Law Act 1975 (Cth), this Court has jurisdiction to take Commonwealth personal protection measures in relation to the child X born 2021, including making parenting orders pursuant to s 65D of the Family Law Act 1975 (Cth).
Parenting orders
3.Until further order…
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CaseChat Overview and Summary
The court found that Australia was not a clearly inappropriate forum and thus retained jurisdiction. It declared the child to be habitually resident in Australia, and subsequently ordered that the child be returned to Australia. The court also made several interim parenting orders, including that the child would live with the mother in Australia, and that the father would have supervised time with the child if he travelled to Australia. Furthermore, the court ordered that the father was to facilitate the mother's communication with the child and directed the mother to apply for an Australian passport for the child without the father's consent.
The court's decision was based on the best interests of the child, taking into account the child's habitual residence in Australia, the mother's established residence in Australia, and the father's agreement to the child's return. The court also considered the potential impact on the child of being removed from their established home and community in Australia. The final orders included detailed provisions for the child's return, communication between the parties, and the preparation of a Child Impact Report to further inform the court's decision-making.
Orders
Orders of the court
SYC 6696 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:
MS REGER
Applicant
AND:
MR HANNEY
Respondent
ORDER MADE BY:
CHRISTIE J
DATE OF ORDER:
20 SEPTEMBER 2023
THE COURT ORDERS THAT:
Declaration / jurisdiction
1. The child X born 2021 is declared to be habitually resident in Australia.
2. Pursuant to s 111CD(1)(e) of the Family Law Act 1975 (Cth), this Court has jurisdiction to take Commonwealth personal protection measures in relation to the child X born 2021, including making parenting orders pursuant to s 65D of the Family Law Act 1975 (Cth).
Parenting orders
3. Until further order the mother shall have sole parental responsibility for the children X born 2021 and Y born 2023 (“the children”).
4. Until further order the children shall live with the mother in Australia.
5. Until such time as Order 10 is effected, the mother shall communicate with the child X via video chat each day from 6.00 am to 6.30 am AEST (3.00 pm to 3.30 pm Central time) and for the purposes of this order:
(a) the father shall do all things necessary to facilitate his cousin Ms C or such other person as may be agreed in writing to be present to assist X to communicate with her mother; and
(b) the father is otherwise not to be present in the room during the time that X communicates with her mother.
6. Within 48 hours of being served with these orders, the father is to provide to the mother written confirmation of the current residential address for X and is to keep the mother informed, in writing, of any changes to that address.
7. The father is to give the mother 28 days’ notice of any intention to travel to Australia and spend time with the children.
8. In the event the father travels to Australia pending further order, the father is to spend time with the children as follows:
(a) under the supervision of a contact centre nominated by the mother and to facilitate such time each party must contact the nominated centre to arrange an appointment for assessment for suitability for supervised contact and complete any required intake procedures;
(b) the father is to spend time with the children for not less than two hours at such times and on such days as the contact centre can facilitate; and
(c) the father shall pay the fees nominated by the contact centre for the provision of its service.
9. After X returns to Australia in accordance with Order 10 the mother (or her nominee) shall facilitate the father communicating with the child X via video chat each week on a date nominated by the father in writing from 6.00 am to 6.30am AEST (3.00 pm to 3.30 pm Central time).
Orders to facilitate the return of the child to Australia
10. The parties are to do all acts and things to ensure the child X born 2021 is returned immediately to the State of New South Wales, in the Commonwealth of Australia.
11. The father is to deliver the child X born 2021 to the mother, or the maternal grandfather Mr E, at the Courthouse in Region D, State B, USA, at the time and date nominated by the mother in writing.
12. For the purposes of order 11, the mother shall provide the father with 72 hours written notice of the time and date for the handover, such notice will be effected by the mother or her solicitor sending an email to:
(a) the father at …@...; and
(b) the father’s solicitor.
13. Upon delivery of the child to the mother, or the maternal grandfather, the mother and/or the maternal grandfather are permitted to remove the child from the United States of America and return to the Commonwealth of Australia with the child.
American passport
14. The father is directed to produce all passports for X to the Courthouse in Region D, State B, USA within 48 hours of being served with these orders and such passports shall be held by the Courthouse and released to the mother or maternal grandfather upon their request.
Australian passport
15. The requirement for the father’s consent to the child X born 2021 having an Australian passport is dispensed with.
16. Pursuant to s 11(1)(b)(i) of the Australian Passports Act 2005 (Cth) the mother is permitted to apply for and the Australian Passports Office is asked to issue an Australian passport for the child X born 2021 without the father’s consent.
Watchlist
17. Until further order, each of the parties and their servants and/or agents be and are hereby restrained by injunction, and irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975, from removing or attempting to remove or causing or permitting the removal of the said child, Y born 2023 from the Commonwealth of Australia.
18. AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name/s of the said child on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watchlist for the said period, or until the court orders its removal.
Other orders
19. Each of the parties has leave to provide copies of documents filed in these proceedings, along with sealed copies of any orders made by the court, to the District Court of Region D, State B in proceedings number ….
20. The mother be permitted to disclose documents filed in these proceedings and these reasons for judgement to the Australian Central Authority, the Central Authority for the United States of America and International Social Services.
21. That each of the parties have liberty to relist this matter on 24 hours’ notice, in relation to the implementation of these orders.
22. Pursuant to s 62G of the Family Law Act 1975 (Cth), the parties and the children are directed to attend with a Court Child Expert (practicing under their appointment as a family consultant) nominated by the Court Children’s Service (“the Court Child Expert”) for the purposes of the preparation of a Child Impact Report at the dates and times as directed by Child Court Services.
23. Part 1 of the event will occur by video using MS Teams or in person on 22 November 2023 with:
(a) the Applicant to attend at the Sydney Registry at Lionel Bowen Building, Level 2, 97-99 Goulburn Street Sydney NSW 2000 at 9.00 am; and
(b) the Respondent to attend at the Sydney Registry at Lionel Bowen Building, Level 2, 97-99 Goulburn Street Sydney NSW 2000 or (at his election) via MS Teams at 10.30 am. A MS Teams link will be provided to the respondent by the Court Child Expert prior to the event if the respondent elects.
24. Part 2 of the event will occur in person at the Sydney Registry at Lionel Bowen Building, Level 2, 97-99 Goulburn Street Sydney NSW 2000 on the morning of 24 November 2023. Specific details regarding the attendance of the parties and the children on this date will be provided to the parties in Part 1 of the event.
25. Each party will do all things necessary to ensure the children attend upon the Court Child Expert pursuant to section s 62G(3A), unless otherwise determined by the Court Child Expert that section s 62G(3B) applies.
26. The parties and the children shall continue to attend at such times, dates and places as the Court Child Expert may advise.
27. Not later than 4:00 pm 7 days after the making of these Orders the parties must provide their contact telephone numbers and email addresses to …@...
28. Pursuant to Order 22 herein, the Court Child Expert shall provide a written report to the Court and the report shall deal with the following matters:
(a) any agreement reached between the parties;
(b) identification of key issues requiring resolution;
(c) any views expressed by the children and any matters (such as the children’s maturity or level of understanding) that would affect the weight that the Court should place on those views;
(d) the impact of the issues/dispute before the Court on the children;
(e) any other matters that the Court Child Expert considers important to the welfare or best interests of the children.
29. Upon completion, the Child Impact Report shall be provided to the Judge for release to the parties, including by way of Order made in Chambers.
30. The Court Child Expert shall be at liberty to inspect any material filed by the parties, and otherwise the following:
(a) the Court file;
(b) all documents produced in these proceedings on subpoena once leave has been granted to the parties or their legal representatives to inspect same; and
(c) all documents produced to the Court pursuant to an Order or request of the Court including state Court files once leave has been granted to the parties or their legal representatives to inspect same.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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