State Central Authority and Barnes (No 3) - [2014] FamCA 1099

FAMILY COURT OF AUSTRALIA

STATE CENTRAL AUTHORITY & BARNES (NO. 3)

[2014] FamCA 1099

FAMILY LAW – CHILD ABDUCTION – Hague convention – Contested habitual residence argument – Parents move to Canada prior to the birth of the child for the purposes of the father completing his qualifications with the intention of returning to Australia – Breakdown after the birth of a child – Decision to alter intention contemplated – Application for return refused.

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

Family Law (Child Abduction Convention) Regulations 1986 (Cth)

Cooper v Casey (1995) FLC 92-575
De L v Director General, NSW Department of Community of Services & Anor (1996) FLC 92-706
Department of Communities, Child Safety and Disability Services & Lasko (No 2) [2012] FamCA 941
Harris & Harris (2010) FLC 93-454
LK v Director-General, Department of Community Services (2009) 237 CLR 582
Punter v Secretary for Justice [2007] 1 NZLR 40 Punter v Secretary for Justice [2007] 1 NZLR 40
Panayotides v Panayotides (1997) FLC 92-733
Punter v Secretary for Justice [2007] 1 NZLR 40
Re: B (Minors) (Abduction) (No 2) [1993] 1 FLR 993
State Central Authority v McCall (1995) FLC 92-552
State Central Authority & Wattey [2008] FamCA 1108
Zenel v Haddow [1993] S.L. T 975
Zotkiewicz & Commissioner of Police (No 2) (2011) FLC 93-472

APPLICANT:

State Central Authority

RESPONDENT:

Ms Barnes

FILE NUMBER:

MLC

4917

2014

DATE DELIVERED:

5 December 2014

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

14 November 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Porritt

SOLICITOR FOR THE APPLICANT:

State Central Authority

COUNSEL FOR THE RESPONDENT:

Mr Testart

SOLICITOR FOR THE RESPONDENT:

Testart Family Lawyers

Orders

That the application filed by the State Central Authority is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym State Central Authority & Barnes has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 4917 of 2014

State Central Authority; Department Of Human Services

Applicant

And

Ms Barnes

Respondent

REASONS FOR JUDGMENT

On 5 June 2014, the Secretary to the Department of Human Services representing the Responsible Central Authority (“the State Central Authority”) filed an application under the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”) seeking an order for the return of the child X (“the child”) born in 2013 to Canada.
The parent requesting the intervention of the State Central Authority is Mr J who lives in Canada and is the child’s father (“the father”). The application is opposed by the child’s mother, Ms Barnes (“the mother”). Collectively, I shall call Mr J and Ms Barnes “the parents”.
The Regulations concern Australia’s obligations under the Convention on the Civil Aspects of International Child Abduction, which I shall refer to for convenience as the Hague Convention. The dispute here was of narrow compass.
The State Central Authority and the mother…

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 State Central Authority and Barnes (No 3)

Details

AGLC: State Central Authority and Barnes (No 3) [2014] FamCA 1099
Case: [2014] FamCA 1099
Decision Date: 5 December 2014

CaseChat Overview and Summary

In the matter of *State Central Authority and Barnes (No 3)*, the Federal Circuit and Family Court of Australia considered an application for the return of a child pursuant to the Hague Convention on the Civil Aspects of International Child Abduction. The application was brought by the State Central Authority on behalf of the child's mother, against the child's father. The central dispute concerned the child's habitual residence at the time of the alleged abduction.

The court was required to determine whether the child was habitually resident in Australia or Canada at the time of the application. This involved an assessment of the parents' intentions and actions regarding their residence in Canada, particularly in light of the birth of the child and the subsequent breakdown of the parental relationship. The court also considered the provisions of the *Family Law Act 1975* (Cth) and the *Evidence Act 1995* (Cth) in its determination.

Cronin J found that the parents had moved to Canada prior to the child's birth with the intention of the father completing his qualifications, with a clear plan to return to Australia. However, following the child's birth and the breakdown of the relationship, the intention to return to Australia was altered. The court concluded that the child had not acquired habitual residence in Australia at the relevant time, and therefore the application for the child's return under the Hague Convention could not be granted.

Consequently, the court ordered that the application filed by the State Central Authority be dismissed.

Orders

Orders of the court

That the application filed by the State Central Authority is dismissed.

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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