State Central Authority and Camden - [2011] FamCA 599

FAMILY COURT OF AUSTRALIA

STATE CENTRAL AUTHORITY & CAMDEN

[2011] FamCA 599

FAMILY LAW – CHILD ABDUCTION – Child brought to Australia – Ex-parte orders.

Family Law Act 1975 (Cth)
Family Law (Child Abduction Convention) Regulations 1986 (Cth)
United Nations Convention on the Rights of the Child

Baker v The Queen (2004) 223 CLR 513
R v Kelly (Edward) [2000] QB 198
State Central Authority & Ustinov (No. 4) [2008] FamCA 987

APPLICANT:

State Central Authority

RESPONDENT:

Ms Camden

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

MLC

5776

2011

DATE DELIVERED:

30 June 2011

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Bennett J

HEARING DATE:

30 June 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT:

Ms Wilson
Department of Human Services, Legal Services Branch

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

ORDERS

IT IS ORDERED:

1.That leave is granted to the applicant State Central Authority to proceed ex-parte with orders in the terms of paragraphs a, b, c, and d of the application filed on 30 June 2011.
2.That this matter be adjourned for the further hearing of the said application before me at 10.00 am on 11 July 2011 (“the adjourned date”).
3.That the applicant State Central Authority effect service of the application and this Order upon the respondent mother as soon as practicable.
4.That in the event that the respondent mother has been served with the application by the adjourned date:-
a)she attend Court personally on 11 July 2011 and remain at Court pending further order of the Court;
b)the mother deliver the children T born … December 2007 and J born … April 2009 to the Child Care Room on the 5^th Floor of this Registry of the Court by not later than 9.30 am, where the children shall remain pending further order of the Court.

5.IT IS DIRECTED that my Associate or Court Officer reserve a place in the Child Care Room for T born … December 2007 and J born … April 2009 on the adjourned date from 9.30 am onwards.
6.That until further order or return of the said child to the United Kingdom, the Secretary to the Department of Human Services of the State of Victoria or her delegate make such arrangements as are necessary for the purposes of placing the said children with an appropriate person, institution or body and upon such terms and conditions as she shall determine to secure the welfare of the said children pending final determination of this proceeding.
7.That such Officers of the Department of Human Services, Victoria, as the Secretary to such department may from time to time direct, be authorised and permitted to visit and enter the place of residence of the respondent and to have such access to the said children as they may reasonably require for the purposes of investigating and determining the welfare of the said children and if considered appropriate to take the said children into care.
8.That until further order, the respondent Ms Camden…

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 Camden

Details

AGLC: State Central Authority and Camden [2011] FamCA 599
Case: [2011] FamCA 599
Decision Date: 30 June 2011

CaseChat Overview and Summary

The proceeding involved the State Central Authority as the applicant and Ms Camden as the respondent. The dispute concerned the welfare and location of two children, T and J, born in 2007 and 2009 respectively. The matter came before Bennett J of the Family Court of Australia.

The court was required to determine whether to grant the applicant leave to proceed ex-parte, and to make interim orders concerning the children's care, residence, and protection from removal from Australia and Victoria. The court also considered the appointment of an independent children's lawyer and arrangements for the potential return of the children to the United Kingdom.

Bennett J granted the applicant leave to proceed ex-parte, acknowledging the urgency and the need to protect the children's welfare. The court applied principles relating to child protection and the court's inherent jurisdiction to make orders for the welfare of children within its purview. Orders were made for the children to attend court, to be delivered to the Child Care Room, and for the Secretary to the Department of Human Services of Victoria to make arrangements for their care and placement. Injunctions were imposed restraining the respondent and the requesting parent from removing the children from Australia, Victoria, or their current residence, and requiring the surrender of passports. An independent children's lawyer was to be appointed to represent the children's interests.

The court adjourned the matter for further hearing, requesting the applicant to provide information regarding arrangements for the children's prompt return to the United Kingdom. Liberty was reserved to the requesting parent to apply to vary or set aside the injunctions.

Orders

Orders of the court

IT IS ORDERED:

1. That leave is granted to the applicant State Central Authority to proceed ex-parte with orders in the terms of paragraphs a, b, c, and d of the application filed on 30 June 2011.

2. That this matter be adjourned for the further hearing of the said application before me at 10.00 am on 11 July 2011 (“the adjourned date”).

3. That the applicant State Central Authority effect service of the application and this Order upon the respondent mother as soon as practicable.

4. That in the event that the respondent mother has been served with the application by the adjourned date:-

a) she attend Court personally on 11 July 2011 and remain at Court pending further order of the Court;

b) the mother deliver the children T born … December 2007 and J born … April 2009 to the Child Care Room on the 5th Floor of this Registry of the Court by not later than 9.30 am, where the children shall remain pending further order of the Court.

5. IT IS DIRECTED that my Associate or Court Officer reserve a place in the Child Care Room for T born … December 2007 and J born … April 2009 on the adjourned date from 9.30 am onwards.

6. That until further order or return of the said child to the United Kingdom, the Secretary to the Department of Human Services of the State of Victoria or her delegate make such arrangements as are necessary for the purposes of placing the said children with an appropriate person, institution or body and upon such terms and conditions as she shall determine to secure the welfare of the said children pending final determination of this proceeding.

7. That such Officers of the Department of Human Services, Victoria, as the Secretary to such department may from time to time direct, be authorised and permitted to visit and enter the place of residence of the respondent and to have such access to the said children as they may reasonably require for the purposes of investigating and determining the welfare of the said children and if considered appropriate to take the said children into care.

8. That until further order, the respondent Ms Camden born … 1977 by her servants or agents be restrained by injunction from causing or permitting or suffering the said children T born … December 2007 and J born … April 2009:-

a) to be removed from the Commonwealth of Australia and in this regard all officers of the Australian Federal Police be directed to enforce, if required, the provisions of such order;

b) to be removed from the State of Victoria; and

c) to reside at any other than their present residential address (which must be advised to the applicant’s solicitors in writing) or any other residence at which the applicant has agreed that the said children may reside.

9. That the prohibition against removal of T born … December 2007 and J born … April 2009 from Australia, out of Victoria and from their current residence applies mutatis mutandis to the requesting parent, Mr Camden of … D Street, Town E, County E, United Kingdom … .

10. That the respondent, her servants or agents forthwith deliver up to the Registrar of the Family Court of Australia at Melbourne for safe custody any and all passports held in the name of the said children or upon which the said children appears and be and is hereby restrained from applying for any further or other passports for the said children pending further orders of this Court.

11. That a sealed copy of these Orders be provided forthwith to the Marshal of the Family Court of Australia, the Commissioner of the Federal Police and the Secretary of the Commonwealth Department of Foreign Affairs and Trade.

12. That pursuant to section 68L(2) of the Family Law Act 1975 the interests of the children T born … December 2007 and J born … April 2009 be independently represented by a lawyer AND IT IS REQUESTED that Victoria Legal Aid arrange such representation and the independent children’s lawyer be appointed in sufficient time by the next return date.

13. That forthwith upon appointment by the said Victoria Legal Aid or otherwise the independent children’s lawyer file a Notice of Address for Service.

14. That within 48 hours of notification of such appointment the solicitor’s for the respective parties provide to the independent children’s lawyer copies of all relevant documents relied upon.

AND IT IS REQUESTED:

15. That on the adjourned date the applicant State Central Authority be in a position to inform the Court of what arrangements can be made to support the prompt return of the respondent and the children to the United Kingdom in the event that I find that T born … December 2007 and J born … April 2009 must be returned to the United Kingdom pursuant to Regulation 16(1) of the Regulations but that I do not accede to the requesting parent’s proposal that he travel to Australia to collect the children and return with the children to the United Kingdom.

IT IS FURTHER ORDERED:

16. That I reserve to the requesting parent, Mr Camden born … 1978, liberty to apply to vary or set aside or discharge any injunctions provided in this Order which affect him or as he may be advised.

17. That the reasons for judgment this day be transcribed and when settled copies be made available to the parties.

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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