State Central Authority and Macnevin - [2019] FamCA 961

FAMILY COURT OF AUSTRALIA

STATE CENTRAL AUTHORITY & MACNEVIN

[2019] FamCA 961

FAMILY LAW – CHILD ABDUCTION – Child brought to Australia – application under the Hague Convention for the return of the child to the United Kingdom – habitual residence in United Kingdom established – acquiescence established – discretion considered – application dismissed.

Convention on 25 October 1980 on the Civil Aspects of International Child Abduction
Family Law (Child Abduction Convention) Regulations 1986 (Cth) regs 4, 14, 16

A v A and Another (Children: Habitual Residence) (Reunite International Child Abduction Centre and Others Intervening) [2013] UKSC 60
AR v RN (Habitual Residence) [2015] UKSC 35
Department of Health and Community Service v Casse (1995) FLC 92-629
LK & Director-General, Department of Community Services (2009) 237 CLR 582
Office of the Children’s Lawyer v Balev 2018 SCC 16
P v P (Abduction: Acquiescence) [1998] 1 Fam Law R 630
Police Commissioner of South Australia v Temple (1993) FLC 92-365
Re A (Minors) (Abduction: Custody Rights) [1992] Fam 106
Re B (A Child)(Habitual Residence: Inherent Jurisdiction) [2016] UKSC 4
Re H (Minors) [1998] AC 72

State Central Authority v Handbury [2019] FamCA 668
Wenceslas & Director-General Department of Community Services [2007] FamCA 398

APPLICANT:

State Central Authority

RESPONDENT:

Ms Macnevin

FILE NUMBER:

MLC

10526

2019

DATE DELIVERED:

24 December 2019

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Hartnett J

HEARING DATE:

6 & 29 November 2019;

13 December 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Harris

SOLICITOR FOR THE APPLICANT:

Department of Health & Human Services, Legal Services Branch

COUNSEL FOR THE RESPONDENT:

Dr Smith

SOLICITOR FOR THE RESPONDENT:

Jellie McDonald

Orders

All previous orders are dismissed.
The application of the State Central Authority filed 16 September 2019 in relation to the child X born … 2018 is dismissed.
The Registrar of the Family Court of Australia at Melbourne as soon as practicable return the passport held in the name of the child X born … 2018 to the Respondent mother.

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 & Macnevin 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 10526 of 2019

State Central Authority

Applicant

And

Ms Macnevin

Respondent

REASONS FOR JUDGMENT

Preliminary

Before the Court is an application filed by the State Central Authority (‘the Authority’) on 16 September 2019 pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (‘the Regulations’). The Application was filed on a request of the International…

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 Macnevin

Details

AGLC: State Central Authority and Macnevin [2019] FamCA 961
Case: [2019] FamCA 961
Decision Date: 24 December 2019

CaseChat Overview and Summary

The case of *State Central Authority and Macnevin* concerned an application by the State Central Authority concerning a child, X, born in 2018. The proceedings were heard by Hartnett J in the Family Court of Australia. The core of the dispute involved the State Central Authority's application, which was ultimately dismissed by the Court.

The primary legal issue before the Court was the determination of the application made by the State Central Authority in relation to the child X. This required the Court to consider the merits of the Authority's application and whether it should be granted.

Hartnett J dismissed the application of the State Central Authority. In addition, the Court ordered that the passport held in the name of the child X be returned to the Respondent mother as soon as practicable. All previous orders made in the proceedings were also dismissed.

Orders

Orders of the court

All previous orders are dismissed.

The application of the State Central Authority filed 16 September 2019 in relation to the child X born … 2018 is dismissed.

The Registrar of the Family Court of Australia at Melbourne as soon as practicable return the passport held in the name of the child X born … 2018 to the Respondent mother.

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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