State Central Authority and Detres (No 2) - [2011] FamCA 774

FAMILY COURT OF AUSTRALIA

STATE CENTRAL AUTHORITY & DETRES (NO 2)

[2011] FamCA 774

FAMILY LAW – CHILD ABDUCTION – Child brought to Australia from the United Kingdom – Both parents consent to the child’s return – Court to determine conditions on the return of the child – Requesting parent to pay for the abducting parent and child’s flight to the United Kingdom and limited living expenses for the abducting parent and the child upon the child’s return – Requesting parent to provide undertakings to the Principal Registry in the High Court in the United Kingdom.

Family Law (Child Abduction Convention) Regulations 1986 (Cth)
Convention on the Civil Aspects of International Child Abduction

State Central Authority & Daker [2008] FamCA 1271

APPLICANT:

State Central Authority

RESPONDENT:

Ms Detres

INDEPENDENT CHILDREN’S LAWYER:

Ms M Lonergan

FILE NUMBER:

MLC

11920

2010

DATE DELIVERED:

6 April 2011

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Bennett J

HEARING DATE:

6 April 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Nemy

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT:

In person

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Stewart

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Victoria Legal Aid

Orders

BY CONSENT IT IS ORDERED THAT:

The child B born … April 2005 (‘the child’) be returned to United Kingdom pursuant to the Family Law (Child Abduction Convention) Regulations 1986.
For the purpose of giving effect to the return provided for in paragraph 1 of this Order:-
(a)The respondent mother be at liberty to accompany the child on the child’s return to the United Kingdom;
(b)The respondent mother attend with the child at Tullamarine Airport in sufficient time to have baggage check in procedures completed by, and to attend at the customs entrance for departing passengers, by not later than 5.00 pm on 19 April 2011;
(c)Until the child arrives in London the respondent mother not cause suffer or permit the child to be removed from the transit area of a terminal during any period of disembarkation in Hong Kong or any unscheduled port.
Paragraph 10 of the order made on 23 December 2010 be discharged and the child’s passports be released to an officer of the Department of Human Services in Victoria.

AND IT IS ORDERED THAT:

The child’s return to the United Kingdom pursuant to paragraph 1 of this Order is conditional upon:
(a)the requesting father, Mr L, immediately paying in full the airline tickets of the child and respondent mother on flight …, departing Tullamarine, Melbourne at … on 19 April 2011 and estimated to arrive at Heathrow, London at … on 20 April 2011;
(b)the requesting father, within 72 hours, depositing the sum of $4,000 AUD (four thousand Australian dollars) in clear funds into the bank account of his lawyers in the United Kingdom, Law Hurst and Taylor Solicitors, and irrevocably instructing his lawyers to pay such sum into an account nominated by the respondent mother once the child has arrived in the United Kingdom, such monies…

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.

Keep reading for free

Create a free CaseChat account to read State Central Authority and Detres (No 2) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2011] FamCA 774
Decision Date: 6 April 2011

CaseChat Overview and Summary

In the matter of *State Central Authority and Detres (No 2)*, Bennett J of the Family Court of Australia considered an application concerning the return of a child, B, born in April 2005, to the United Kingdom. The proceedings involved the State Central Authority as the applicant, the respondent mother, and the requesting father, Mr L. The core of the dispute revolved around the child's welfare and return to the jurisdiction from which he had allegedly been wrongfully removed, in accordance with the Family Law (Child Abduction Convention) Regulations 1986.

The court was required to determine the terms and conditions under which the child, B, would be returned to the United Kingdom. This included specifying the arrangements for the mother's accompaniment, travel details, and prohibitions against further removal during transit. Crucially, the court had to establish conditions precedent to the child's return, ensuring the father's financial and legal commitments were met in both Australia and the United Kingdom to facilitate a safe and supported return for the child and mother.

By consent, the court ordered the child's return to the United Kingdom, with the respondent mother at liberty to accompany him. The order stipulated specific times for attendance at Tullamarine Airport and prohibited the child's removal from transit areas during any disembarkation in Hong Kong or unscheduled ports. The return was made conditional upon the father immediately paying for the airline tickets for both the child and mother, depositing a sum of $4,000 AUD into his UK lawyers' account for the child's expenses, and securing consent orders and undertakings from the Principal Registry of the High Court in the United Kingdom. The court also made provisions for the release of the child's passports to an officer of the Department of Human Services and for that officer to hand the passport to the mother prior to her entering the customs area. The application by the State Central Authority and the cross-application by the respondent mother were otherwise dismissed, and the appointment of an Independent Children's Lawyer was discharged upon the child's arrival in London.

Orders

Orders of the court

BY CONSENT IT IS ORDERED THAT:

The child B born … April 2005 (‘the child’) be returned to United Kingdom pursuant to the Family Law (Child Abduction Convention) Regulations 1986.

For the purpose of giving effect to the return provided for in paragraph 1 of this Order:-

(a) The respondent mother be at liberty to accompany the child on the child’s return to the United Kingdom;

(b) The respondent mother attend with the child at Tullamarine Airport in sufficient time to have baggage check in procedures completed by, and to attend at the customs entrance for departing passengers, by not later than 5.00 pm on 19 April 2011;

(c) Until the child arrives in London the respondent mother not cause suffer or permit the child to be removed from the transit area of a terminal during any period of disembarkation in Hong Kong or any unscheduled port.

Paragraph 10 of the order made on 23 December 2010 be discharged and the child’s passports be released to an officer of the Department of Human Services in Victoria.

AND IT IS ORDERED THAT:

The child’s return to the United Kingdom pursuant to paragraph 1 of this Order is conditional upon:

(a) the requesting father, Mr L, immediately paying in full the airline tickets of the child and respondent mother on flight …, departing Tullamarine, Melbourne at … on 19 April 2011 and estimated to arrive at Heathrow, London at … on 20 April 2011;

(b) the requesting father, within 72 hours, depositing the sum of $4,000 AUD (four thousand Australian dollars) in clear funds into the bank account of his lawyers in the United Kingdom, Law Hurst and Taylor Solicitors, and irrevocably instructing his lawyers to pay such sum into an account nominated by the respondent mother once the child has arrived in the United Kingdom, such monies to be utilised by the mother for the day to day expenses of the child and herself; and

(c) orders being made by, and the requesting father providing undertakings to, the Principal Registry of the High Court in the United Kingdom in terms of the minute of proposed consent orders signed by the respondent mother and requesting father and dated 6 April 2011 with the attached undertakings in the form of Exhibit “C2” which is attached hereto.

AND IT IS REQUESTED that the Registrar of the Principal Registry of the High Court provide a sealed copy of the orders made on 6 April 2011 and a copy of the undertakings given by the requesting father to the parties in these proceedings and to my Chambers (email … @familycourt.gov.au).

An officer of the Department of Human Services in Victoria attend outside the entry to Customs in the International Terminal at Tullamarine, Melbourne at … on 19 April 2011 and hand the child’s passport to the mother immediately prior to the mother and child entering the restricted customs area.

Immediately prior to the departure of the child from Australia, paragraphs 8 and 9 of the orders made on 23 December 2010 be and are hereby discharged.

Liberty is reserved to the parties to apply in relation to the implementation of this Order.

The application of the State Central Authority filed 22 December 2010 and the answer and cross application of the respondent mother filed 2 March 2011 be otherwise dismissed.

The order for the appointment of the Independent Children’s Lawyer is hereby discharged as and from the arrival of the child in London.

10.

The solicitors for the applicant State Central Authority be responsible for serving a sealed copy of this Order on the proper officer of Qantas for the information of Qantas (particularly as to paragraph 2(c)) and do so by electronic means.

11.

The parties have liberty to apply on short notice in the event of alleged non-compliance with this Order or the non-appearance of the child at the airport at … on 19 April 2011 and, for that purpose, if contact with the Court must be made outside Court sitting hours counsel for the Independent Children’s Lawyer be at liberty to contact my Associate, …, and request that any consequential application be considered immediately.

12.

The evidence given on 5 April 2011 be transcribed and be made available to the parties and the requesting parent.

13.

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

14.

The facsimile transmissions between this Court and the Office of the Honourable Lord Justice Thorpe be marked Exhibit “C1” and remain on the Court file.

15.

A copy of the minute of consent order signed by the mother and the father and dated by me as 6 April 2011 be marked Exhibit “C2” and remain on the Court file.

16.

The memorandum from Christine Dooley of Counsel be marked Exhibit “C3” and remain on the Court file.

AND IT IS NOTED that the respondent mother led no further evidence nor made any submissions in opposition to the child’s return to the United Kingdom, and returns herself and the child to the jurisdiction of the United Kingdom voluntarily.

AND IT IS FURTHER NOTED that the respondent mother’s address for service is Unit …, … A Street, Melbourne Suburb 1, Victoria 3020, and her email address is … .

AND IT IS FURTHER NOTED that the father’s lawyers will arrange for the pending proceedings in the United Kingdom to be listed on 6 April 2011 for the purpose of serving the orders and providing the undertakings described in paragraph 4(c) of this Order.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.