State Central Authority and Camden (No 2) - [2011] FamCA 666

FAMILY COURT OF AUSTRALIA

STATE CENTRAL AUTHORITY & CAMDEN (NO 2) [2011] FamCA 666

FAMILY LAW – CHILD ABDUCTION – procedure – benefits of mediation - exceptional circumstances warranting appointment of an independent children’s lawyer - alleged wrongful retention – children not habitually resident in the United Kingdom in spite of joint intention of parents to reside there – finding that the children had not become sufficiently integrated into life in their new state of residence to be regarded as habitually resident – judicial task as described in Zotkiewick’s case very helpful – grave risk of harm considered – consent considered - discretion against mandatory return considered – application dismissed

APPLICANT: State Central Authority

RESPONDENT: Ms Camden

INDEPENDENT CHILDREN’S LAWYER: Ms N Watts

FILE NUMBER: MLC 5776 Of 2011

DATE DELIVERED: 12 August 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 1, 2, 3 and 4 August 2011
REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms T Porritt

SOLICITOR FOR THE APPLICANT: Department of Human Services, Legal Services Branch

COUNSEL FOR THE RESPONDENT: Ms M Baczynski

SOLICITOR FOR THE RESPONDENT: Denise A Dwyer Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms L Colla

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Septimus Jones & Lee
Orders
IT IS ORDERED THAT:
1.The application of the State Central Authority filed on 30 June 2011 be and is hereby dismissed.
2.The respondent mother, Ms Camden, be and is hereby at liberty to collect from the Registry Manager any passports of the children T born … December 2007 and J born … April 2009 currently held for safekeeping by this Registry of the Court.
3.In the event that a further parenting application is filed on or before 30 August 2013 the parties, or the requesting parent, Mr Camden, is at liberty to have the matter listed before me for directions in the event that I am reasonably available. This order does not, however, preclude any other judicial officer from hearing the matter.
4.IT IS REQUESTED that the Australia Federal Police remove the names of the children T born … December 2007 and J born … April 2009 from the Airport Watch List at all points of international arrivals and departures in Australia.
5.The respondent mother, Ms Camden, be and is hereby at liberty to collect from the independent children’s lawyer any British passports of the children T born … December 2007 and J born … April 2009 currently held for safekeeping by the independent children’s lawyer.

IT IS NOTED that publication of this judgment under the pseudonym State Central Authority and Camden (No 2) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE
FILE NUMBER: MLC 5776 of 2011

State Central Authority
Applicant
And

Ms Camden
Respondent
And

Independent Children’s Lawyer
REASONS FOR JUDGMENT
Introduction
1.By application filed 30 June 2011 the State Central Authority seeks the return to the United Kingdom (“United Kingdom”) of the children T born in December 2007…

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.

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Details

Case: [2011] FamCA 666
Decision Date: 12 August 2011

CaseChat Overview and Summary

The State Central Authority applied to the Federal Magistrates Court of Australia for orders concerning the children T and J. Ms Camden, the respondent mother, opposed the application. Bennett J presided over the matter.

The central legal issue before the court was whether to grant the State Central Authority's application, which implicitly sought to maintain restrictions on the children's international travel. This involved considering the existing circumstances of the children and the parents' respective positions in relation to their welfare and future.

Bennett J dismissed the application of the State Central Authority. The court reasoned that the circumstances no longer warranted the continuation of travel restrictions. Consequently, the court ordered that Ms Camden be at liberty to collect the children's passports, both those held by the Registry and those held by the independent children's lawyer. The court further requested the Australia Federal Police to remove the children's names from the Airport Watch List. The orders also provided for the possibility of relisting the matter for directions before Bennett J if a further parenting application was filed by a specified date, though this did not preclude another judicial officer from hearing such an application.

Orders

Orders of the court

IT IS ORDERED THAT:

1. The application of the State Central Authority filed on 30 June 2011 be and is hereby dismissed.

2. The respondent mother, Ms Camden, be and is hereby at liberty to collect from the Registry Manager any passports of the children T born … December 2007 and J born … April 2009 currently held for safekeeping by this Registry of the Court.

3. In the event that a further parenting application is filed on or before 30 August 2013 the parties, or the requesting parent, Mr Camden, is at liberty to have the matter listed before me for directions in the event that I am reasonably available. This order does not, however, preclude any other judicial officer from hearing the matter.

4. IT IS REQUESTED that the Australia Federal Police remove the names of the children T born … December 2007 and J born … April 2009 from the Airport Watch List at all points of international arrivals and departures in Australia.

5. The respondent mother, Ms Camden, be and is hereby at liberty to collect from the independent children’s lawyer any British passports of the children T born … December 2007 and J born … April 2009 currently held for safekeeping by the independent children’s lawyer.

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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