State Central Authority and Khosla - [2017] FamCA 1020

FAMILY COURT OF AUSTRALIA

STATE CENTRAL AUTHORITY & KHOSLA

[2017] FamCA 1020

FAMILY LAW – CHILD ABDUCTION – Hague Convention – Application for the return of the child to New Zealand – Where the child was removed from New Zealand, removed to India and was then removed to and retained in Australia – Where the mother concedes that the removal of the child was wrongful – Where the child has settled in Australia – Where the child experienced an unsettled life through conflict between his parents and between his mother and extended paternal family – Whether there is a discretion to make an order for return despite the child being settled – Ordered the application is dismissed and the child should not be returned to New Zealand

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

Department of Communities, Child Safety and Disability Services & Hughes [2017] FamCA 509
Director-General, Department of Community Services & M and C (1998) FLC 92-829
State Central Authority v Ayob (1997) FLC 92-746
State Central Authority & Castillo [2015] FamCA 792
State Central Authority & Fang [2017] FamCA 533
State Central Authority & Hajjar [2010] FamCA 648

APPLICANT:

Secretary to the Department of Health and Human Services STATE CENTRAL AUTHORITY

RESPONDENT:

Ms Khosla

INDEPENDENT CHILDREN’S LAWYER:

Victoria Legal Aid

FILE NUMBER:

MLC

10006

2017

DATE DELIVERED:

14 December 2017

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cleary J

HEARING DATE:

28-30 November 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Wilson

SOLICITOR FOR THE APPLICANT:

Department of Health and Human Services, Legal Services Branch

COUNSEL FOR THE RESPONDENT:

Ms Renwick

SOLICITOR FOR THE RESPONDENT:

MLG Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Treyvaud

Orders

The application for return of the child B born … 2006 “the child” filed 27 September 2017 by the State Central Authority is dismissed.
Orders 4, 5 and 6 [set out herein] of the orders made in this Court on 28 September 2017 are discharged.
4.UNTIL FURTHER ORDER, the respondent mother, her servants or agents be restrained by injunction from causing or permitting or suffering the child, B born … 2006 (male):
(a)to be removed from the Commonwealth of Australia, and in this regard all officers of the Australian Federal Police be directed to enforce, if required, the provisions of such order;
(b)to be removed from the State of Victoria; or
(c)to reside at any address other than his present residential address or any other residence at which the applicant has agreed that the child reside.
5.The Australian Federal Police place the name of the child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Airport Watch List UNTIL FURTHER ORDER of the Court.
6.The respondent mother, her servants or agents forthwith deliver up to the Registrar of the Family Court of Australia at Melbourne for safe custody any and all passports held in the name of the child or upon which…

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 Khosla

Details

AGLC: State Central Authority and Khosla [2017] FamCA 1020
Case: [2017] FamCA 1020
Decision Date: 14 December 2017

CaseChat Overview and Summary

The proceeding involved an application by the State Central Authority for the return of a child, B, born in 2006. The application was heard by Cleary J of the Family Court of Australia. The dispute concerned the child's potential removal from Australia.

The central legal issue before the Court was whether the child should be returned to his habitual residence, which was implied to be outside of Australia, pursuant to the *Hague Convention on the Civil Aspects of International Child Abduction*. The Court was required to determine if the conditions for the child's return were met, or if any exceptions to the return obligation applied.

Cleary J dismissed the application for the child's return. The reasoning for this decision is not fully detailed in the provided text, but the outcome suggests that the Court found grounds to refuse the return. This may have been due to the application of exceptions under the Hague Convention, such as the child having attained an age and degree of maturity at which it is appropriate to ascertain his views, or the grave risk that his return would expose him to physical or psychological harm or otherwise place him in an intolerable situation. The Court also discharged previous orders that had restrained the child's removal from Australia and Victoria, and ordered the removal of the child's name from the Airport Watch List. Further, the Court ordered that passports held by the child and the respondent mother be released after 42 days.

Orders

Orders of the court

The application for return of the child B born … 2006 “the child” filed 27 September 2017 by the State Central Authority is dismissed.

Orders 4, 5 and 6 [set out herein] of the orders made in this Court on 28 September 2017 are discharged.

4. UNTIL FURTHER ORDER, the respondent mother, her servants or agents be restrained by injunction from causing or permitting or suffering the child, B born … 2006 (male):

(a) to be removed from the Commonwealth of Australia, and in this regard all officers of the Australian Federal Police be directed to enforce, if required, the provisions of such order;

(b) to be removed from the State of Victoria; or

(c) to reside at any address other than his present residential address or any other residence at which the applicant has agreed that the child reside.

5. The Australian Federal Police place the name of the child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Airport Watch List UNTIL FURTHER ORDER of the Court.

6. The respondent mother, her servants or agents forthwith deliver up to the Registrar of the Family Court of Australia at Melbourne for safe custody any and all passports held in the name of the child or upon which the child appears and be restrained from applying for any further or other passports for the child pending further orders of this Court.

The Australian Federal Police remove the name of the child from the Airport Watch List.

The Registry manager shall, after 42 days have elapsed from the date of these orders, release to the Respondent mother the passports of herself and the child.

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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