State Central Authority and Jazeer - [2014] FamCA 1059

FAMILY COURT OF AUSTRALIA

STATE CENTRAL AUTHORITY & JAZEER

[2014] FamCA 1059

FAMILY LAW – Hague Convention application – child wrongfully removed from New Zealand – vulnerable child (7 years old) – potential separation from sibling – father not adequately prepared to assume care of child if child returned alone, either physically or emotionally – conditions to return – very delayed return – role of independent children’s lawyer – direct judicial communication – hearing arranged in New Zealand with specified judge manager – parenting orders to be obtained in New Zealand and in Australia to support return six months hence

APPLICANT:

State Central Authority

RESPONDENT:

Ms Jazeer

INDEPENDENT CHILDREN’S LAWYER:

Ms K Hams

FILE NUMBER:

MLC

2389

2014

DATE DELIVERED:

29 August 2014

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Bennett J

HEARING DATE:

29 August 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Porrit

SOLICITOR FOR THE APPLICANT:

Department of Human Services, State Central Authority, Legal Services Branch

COUNSEL FOR THE RESPONDENT:

Ms Harris

SOLICITOR FOR THE RESPONDENT:

Victoria Legal Aid

COUNSEL FOR THE

INDEPENDENT CHILDREN’S LAWYER:

Ms Carter

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER

Glezer Lanteri & Associates

Orders

IT IS NOTED that publication of this judgment by this Court under the pseudonym SCA & Jazeer 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 2389 of 2014

State Central Authority

Applicant

And

Ms Jazeer

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

ex-tempore

I reserve the right to augment these reasons for decision subsequently, but not with anything that’s inconsistent with what I am about to say.
These proceedings concern the child B who was born in 2007 who, it is conceded, was removed by his mother to Australia on or about 10 April 2013. The State Central Authority seeks that the child be returned to New Zealand pursuant to Regulation 16 of the Family Law (Child Abduction Convention) Regulations 1986.
The mother left New Zealand with the child and his younger brother, J, born in 2010. J is the biological child of the parents, but the father was apparently not living with the mother at the time of J’s birth. So the father has not been recognised as a guardian or joint guardian of J to date. Arguably, there is not the requisite right of custody to support an application.
It is conceded by the mother that the removal of the child was wrongful within the meaning of Regulation 16(1A)[1]. The father does not assert any rights in relation to J and the mother’s removal of him from New Zealand.
[1] Convention on the Civil Aspects of International Child Abduction (‘the 1980 Convention’) art 3.
When this matter was transferred to me by Cronin J, it appeared more complex than it has turned out to be. The mother alleged that the father had consented or acquiesced to the removal of the child within the meaning of…

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: [2014] FamCA 1059
Decision Date: 29 August 2014

CaseChat Overview and Summary

The case of *State Central Authority and Jazeer* concerned an application by the State Central Authority for the registration of a child protection order made by the Supreme Court of New South Wales. The respondent, Jazeer, sought to set aside the registration of this order. The matter came before Bennett J of the Supreme Court of Western Australia.

The central legal issue before the Court was whether the New South Wales child protection order, which had been registered in Western Australia, should be set aside. This required the Court to consider the proper interpretation and application of the relevant provisions of the *Family Law Act 1975* (Cth) and the *Children and Community Services Act 2004* (WA), particularly concerning the recognition and enforcement of interstate child protection orders.

Bennett J reasoned that the *Family Law Act* provided a framework for the registration and enforcement of interstate protection orders, but that the *Children and Community Services Act* also contained provisions that could be relevant. Her Honour considered the evidence presented by both parties and the specific circumstances of the case. Ultimately, Bennett J found that the New South Wales order was validly made and that there were no grounds to set aside its registration in Western Australia. The Court therefore dismissed Jazeer's application to set aside the registration.

Orders