Richards v Director-General, Department of Child Safety

[2007] FamCA 65

FAMILY COURT OF AUSTRALIA

RICHARDS & DIRECTOR-GENERAL DEPARTMENT OF CHILD SAFETY [2007] FamCA 65

APPEAL – CHILD ABDUCTION – Wrongful retention – Children’s wishes – Mother wrongfully retained the children in Australia when they visited for holiday contact – Primary care giving mother denied permission to relocate to Australia with the children by an American court – Mother moved to Australia leaving the children in their father’s care – Trial judge found an exception to mandatory return  was made out, but used his discretion to order return there being no “clear and compelling” reason shown to frustrate the objects of the Convention – Error in approach in that the discretion not to order a return is at large once a defence has been made out – Upon a re-exercise of discretion the Full Court concluded that the return order should stand – Appeal dismissed.

Family Law (Child Abduction Convention) Regulations 1989

DL v Director-General NSW Department of Community Services and Anor (1996) 20 FamLR 390 at 425
Laing v The Central Authority (1999) FLC 92-849
Re HB (Abduction: Children’s Objections) [1997] FLR 392
Re R (Child Abduction: Acquiescence) [1995] 1 FLR 716

APPELLANT: MS RICHARDS

RESPONDENT: DIRECTOR-GENERAL DEPARTMENT OF CHILD SAFETY

FILE NUMBER: BRF 2261 of 2006

APPEAL NUMBER: NA 94 of 2006

DATE DELIVERED: 15 FEBRUARY 2007

PLACE DELIVERED: BRISBANE

JUDGMENT OF: KAY, COLEMAN & BOLAND JJ

HEARING DATE: 31 JANUARY 2007 by video link to Melbourne Registry

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 8 DECEMBER 2006

LOWER COURT MNC: [2006] FamCA 1383

REPRESENTATION

COUNSEL FOR THE APPELLANT: MR COOPER

SOLICITORS FOR THE APPELLANT: BARRY & NILSSON LAWYERS

COUNSEL FOR THE RESPONDENT: MR WESTBROOK

SOLICITORS FOR THE RESPONDENT: CROWN LAW

Orders

1. That the appeal be dismissed.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Full Court delivered this day will for all publication and reporting purposes be referred to as Richards v Director-General Department of Child Safety

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE BY VIDEO LINK TO MELBOURNE REGISTRY

Appeal Number: NA 94  of 2006
File Number: BRF 2261 of 2006

MS RICHARDS

Appellant

And

DIRECTOR-GENERAL DEPARTMENT OF CHILD SAFETY

Respondent

REASONS FOR JUDGMENT

1. On 31 January 2007 we dismissed an appeal against orders made by Jordan J on 8 December 2006 requiring the return of two children C born in March 1994 and S born in July 1996 to the United States of America pursuant to provisions of the Family Law (Child Abduction Convention) Regulations 1989 (“the Regulations”).  We indicated that we would publish our reasons at a later date.

2. The Regulations make provisions for the performance of the obligations of Australia under the Convention on the Civil Aspects of International Child Abduction signed at The Hague on 25 October 1980 (“the Convention”).

3. Both Australia and the United States are signatories to the Convention.  In broad terms the Convention and the Regulations provide that, as between countries who have ratified or acceded to…