State Central Authority and Jazeer (No 3) - [2015] FamCA 315

FAMILY COURT OF AUSTRALIA

STATE CENTRAL AUTHORITY & JAZEER (NO 3)

[2015] FamCA 315

FAMILY LAW – Interim application by respondent mother in Hague Convention proceedings to re-open her case to adduce further evidence in opposition to return — application not allowed in relation to exception to return — application allowed in relation to conditions to return

APPLICANT:

State Central Authority

RESPONDENT:

Ms Jazeer

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

Ms Hams

FILE NUMBER:

MLC

2384

2014

DATE DELIVERED:

17 April 2015

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Bennett J

HEARING DATE:

17 April 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Porritt

SOLICITOR FOR THE APPLICANT:

Department of Human Services, Legal Services Branch

COUNSEL FOR THE RESPONDENT:

Ms Harris (Amicus Curiae)

SOLICITOR FOR THE RESPONDENT:

Orders

IT IS ORDERED THAT:

1.Leave is granted to the respondent mother to re-open her case for the purpose of adducing further evidence relevant to the conditions under which the child B born … 2007 is to be returned to New Zealand.
2.Leave is granted to the respondent mother to rely upon:-
a) her affidavit sworn 13 April 2015; and
b) the affidavit of Ms H (psychologist) affirmed on 12 April 2015.
3.Leave is granted to the respondent mother to file and rely upon the affidavit by Ms I, solicitor, sworn or affirmed on 16 April 2015.
4.Any material to be relied upon by the State Central Authority in response to the further evidence relied upon by the respondent mother be filed and served by not later than 4.00 pm on Friday 24 April 2015.
5.The further hearing of these proceedings be adjourned to 3.00 pm on Thursday 30 April 2015 NOTING THAT the Court will, if necessary sit on that day until 5.30 pm to conclude the case. Subject to any further Order of the Court, the further evidence and submissions be confined to conditions of return.
6.By not later than 12.00 noon on Tuesday 28 April 2015 the respondent mother publish to the State Central Authority and to the independent children’s lawyer any conditions that she seeks be imposed on the return of the child B born … 2007 to New Zealand.

IT IS DIRECTED:

7.That my reasons for decision this day be transcribed and when settled they be published to the parties and a copy be sent to Judge McHardy in New Zealand.

AND IT IS NOTED that in the event that a party fails on the next hearing date to comply with an order for the filing of documents the proceedings may be determined notwithstanding that failure and without any further input from the party in default.

IT IS NOTED that publication of this judgment by this Court under the pseudonym State Central Authority & 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 2384 of 2014

State Central Authority

Applicant

And

Ms Jazeer

Respondent

REASONS FOR JUDGMENT

EX TEMPORE

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: [2015] FamCA 315
Decision Date: 17 April 2015

CaseChat Overview and Summary

In the matter of *State Central Authority and Jazeer (No 3)*, Bennett J of the Family Court of Australia considered an application by the respondent mother concerning the return of a child, B, to New Zealand. The proceedings involved the State Central Authority and the respondent mother, with the central dispute revolving around the conditions under which the child would be returned to New Zealand.

The primary legal issue before the court was whether to grant the respondent mother leave to re-open her case to adduce further evidence. This evidence was relevant to the conditions of the child's return to New Zealand. The court was also required to determine which affidavits the respondent mother should be permitted to rely upon and how the proceedings should be managed to allow for the introduction of this new evidence and any response from the State Central Authority.

Bennett J granted leave to the respondent mother to re-open her case for the purpose of adducing further evidence concerning the conditions of the child's return. Leave was also granted to rely on specific affidavits sworn or affirmed by the respondent mother and a psychologist, Ms H, as well as an affidavit from a solicitor, Ms I. The court directed that any responsive material from the State Central Authority be filed by a specified date, and the further hearing was adjourned to allow for the consideration of this evidence and submissions, which were to be confined to the conditions of return. The respondent mother was also directed to publish any proposed conditions by a specific date. The court noted that failure to comply with orders for filing documents could lead to the proceedings being determined without further input from the defaulting party.

Orders

Orders of the court

IT IS ORDERED THAT:

1. Leave is granted to the respondent mother to re-open her case for the purpose of adducing further evidence relevant to the conditions under which the child B born … 2007 is to be returned to New Zealand.

2. Leave is granted to the respondent mother to rely upon:-

a) her affidavit sworn 13 April 2015; and

b) the affidavit of Ms H (psychologist) affirmed on 12 April 2015.

3. Leave is granted to the respondent mother to file and rely upon the affidavit by Ms I, solicitor, sworn or affirmed on 16 April 2015.

4. Any material to be relied upon by the State Central Authority in response to the further evidence relied upon by the respondent mother be filed and served by not later than 4.00 pm on Friday 24 April 2015.

5. The further hearing of these proceedings be adjourned to 3.00 pm on Thursday 30 April 2015 NOTING THAT the Court will, if necessary sit on that day until 5.30 pm to conclude the case. Subject to any further Order of the Court, the further evidence and submissions be confined to conditions of return.

6. By not later than 12.00 noon on Tuesday 28 April 2015 the respondent mother publish to the State Central Authority and to the independent children’s lawyer any conditions that she seeks be imposed on the return of the child B born … 2007 to New Zealand.

IT IS DIRECTED:

7. That my reasons for decision this day be transcribed and when settled they be published to the parties and a copy be sent to Judge McHardy in New Zealand.

AND IT IS NOTED that in the event that a party fails on the next hearing date to comply with an order for the filing of documents the proceedings may be determined notwithstanding that failure and without any further input from the party in default.

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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