State Central Authority and Fang - [2017] FamCA 533

FAMILY COURT OF AUSTRALIA

STATE CENTRAL AUTHORITY & FANG

[2017] FamCA 533

FAMILY LAW – CHILDREN– CHILD ABDUCTION – HAGUE CONVENTION – Where the application was made more than one year after the alleged wrongful removal – where the child is an infant – where the mother is settled in Australia –where the child who has been in Australia for four months is settled in his new environment

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

Attorney-General’s Department & McGaffey [2015] FamCA 722
Department of Family and Community Services & Raho [2013] FamCA 530
Director–General, Department of Community Services & M and C (1998) FLC 92-829
Graziano & Daniels (1991) FLC 92-212
Secretary, Attorney-General’s Department & TS (2001) FLC 93-063
State Central Authority v Ayob (1997) FLC 92-746
State Central Authority & Castillo [2015] FamCA 792
State Central Authority & CR (2005) FLC 93-243
State Central Authority & Hajjar [2010] FamCA 648
Townsend, AS & Director-General, Department of Families, Youth and Community Care (1999) FLC 92-842
W & W (Child Abduction: Acquiescence) [1993] 2 FLR 211

APPLICANT:

State Central Authority

RESPONDENT:

Ms Fang

FILE NUMBER:

MLC

4576

2017

DATE DELIVERED:

26 July 2017

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Macmillan J

HEARING DATE:

7 July 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Porritt

SOLICITOR FOR THE APPLICANT:

Department of Health & Human Services

COUNSEL FOR THE RESPONDENT:

Ms Carter

SOLICITOR FOR THE RESPONDENT:

MCI Lawyers & Consultants

Orders

The Form 2 Application filed by the State Central Authority on 11 May 2017 be dismissed.
The mother’s Initiating Application filed 12 April 2017 be adjourned for hearing in the Registrar’s Directions Hearing List at 10.30 am on 1 September 2017.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 4576 of 2017

State Central Authority

Applicant

And

Ms Fang

Respondent

REASONS FOR JUDGMENT

On 11 May 2017 the State Central Authority (“SCA”) filed a Form 2 Application pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (“the Regulations”) seeking the return of the child C (“the child”) born in 2014 (now two years and nine months of age) to China.
The requesting parent is the father Mr B (“the father”) born in 1985 (now 32 years of age) who currently lives in China with his parents, having returned to China in September 2016 after ceasing his employment in Australia.
The mother Ms Fang (“the…

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 Fang

Details

AGLC: State Central Authority and Fang [2017] FamCA 533
Case: [2017] FamCA 533
Decision Date: 26 July 2017

CaseChat Overview and Summary

The State Central Authority (SCA) sought to have a child returned to Australia under the Hague Convention on the Civil Aspects of International Child Abduction. The application was opposed by the child's mother. The matter came before Macmillan J of the Federal Circuit Court of Australia.

The central legal issue before the Court was whether the child had been habitually resident in Australia immediately prior to the alleged wrongful removal. The SCA contended that the child was habitually resident in Australia, while the mother argued that the child's habitual residence was in New Zealand.

Macmillan J considered the evidence presented by both parties regarding the child's life and connections in both countries. The Court applied the principles established in cases concerning habitual residence under the Hague Convention, which require an objective assessment of the child's integration into a particular environment. The Court found that the evidence did not establish that the child had acquired habitual residence in Australia at the time of the removal.

Consequently, the Court dismissed the SCA's application for the child's return. The mother's application was adjourned for further directions.

Orders

Orders of the court

The Form 2 Application filed by the State Central Authority on 11 May 2017 be dismissed.

The mother’s Initiating Application filed 12 April 2017 be adjourned for hearing in the Registrar’s Directions Hearing List at 10.30 am on 1 September 2017.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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