State Central Authority and Muteki - [2018] FamCA 730

FAMILY COURT OF AUSTRALIA

STATE CENTRAL AUTHORITY & MUTEKI

[2018] FamCA 730

FAMILY LAW – Ex parte return date of return proceedings under the 1980 Hague Convention – safeguards and protective measures – appointment of an Independent Children’s Lawyer– anticipated tasks of an Independent Children’s Lawyer.

Family Law (Child Abduction Convention) Regulations 1986

Re E (Children) (FC) [2011] UKSC 27
TB v JB(Abduction: Grave Risk of Harm) [2000] EWCA Civ 337

APPLICANT:

State Central Authority For Victoria

RESPONDENT:

Ms Muteki

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

MLC

9904

2018

DATE DELIVERED:

27 August 2018

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Bennett J

HEARING DATE:

27 August 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Marasco

SOLICITOR FOR THE APPLICANT:

State Central Authority, Department of Human Services

COUNSEL FOR THE RESPONDENT:

Ex parte

SOLICITOR FOR THE RESPONDENT:

Ex parte

Orders

IT IS ORDERED:

That leave is granted to the applicant State Central Authority to proceed ex-parte with orders in the terms of paragraphs (a) to (f) of the application filed 27 August 2018.
That this matter be adjourned for the further hearing of the said application before me at 9.30 am on Thursday 30 August 2018 (“the adjourned date”).
That the applicant State Central Authority effect service of the application and this Order upon the respondent mother as soon as practicable.
That in the event that the respondent mother has been served with the application by the adjourned date:-
(a) she attend Court personally on 30 August 2018 and remain at Court pending further order of the Court;
(b) subject to paragraph 7 of this Order the mother deliver the child X born … 2018 (“the child”) to the Child Care Room on the 5^th Floor of this Registry of the Court by not later than 9.15 am, where the child shall remain pending further order of the Court.
IT IS DIRECTED that my Associate or Court Officer reserve a place in the Child Care Room for the child on the adjourned date from 9.15 am onwards.
That until further order or return of the said child to New Zealand, the Secretary to the Department of Human Services of the State of Victoria or her delegate make such arrangements as are necessary for the purposes of placing the said child with an appropriate person, institution or body and upon such terms and conditions as she shall determine to secure the welfare of the said child pending final determination of this proceeding.
A proper officer of the applicant undertake a home visit at the child’s residence, assesses that the child is that to whom the application relates and that the child is being cared for appropriately and if that officer advises the mother accordingly, the mother is excused from bringing the child Court on the adjourned date.
That such Officers of the Department of Human Services, Victoria, as the Secretary to such department may from time to time direct, be authorised and permitted to visit and enter 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 Muteki

Details

AGLC: State Central Authority and Muteki [2018] FamCA 730
Case: [2018] FamCA 730
Decision Date: 27 August 2018

CaseChat Overview and Summary

This matter came before Bennett J of the Family Court of Australia concerning an application by the State Central Authority on behalf of a requesting parent, Mr D, from New Zealand. The dispute involved the welfare and location of a child, X, born in 2018, who was allegedly in the care of the respondent mother in Victoria. The State Central Authority sought orders for the child's return to New Zealand, as well as interim protective measures.

The court was required to determine whether to grant the applicant leave to proceed ex-parte, and to make various interim orders concerning the child's care, location, and protection from removal from Australia and Victoria. Key issues included the immediate welfare of the child, the enforcement of potential return orders, and the facilitation of legal processes under relevant international conventions. The court also considered the need for independent representation for the child and the potential for mediation.

Bennett J granted leave for the applicant to proceed ex-parte and made a series of orders designed to secure the child's welfare and ensure her presence for further court proceedings. These included directions for the mother to attend court with the child, provisions for the child's care by the Department of Human Services, and injunctions restraining the removal of the child from Australia, Victoria, or her current residence. The court also ordered the surrender of passports and directed that the child be independently represented. The matter was adjourned for further hearing, with specific requests for the applicant to provide information regarding arrangements for the child's potential return to New Zealand and the father's proposals for travel and mediation.

Orders

Orders of the court

IT IS ORDERED:

That leave is granted to the applicant State Central Authority to proceed ex-parte with orders in the terms of paragraphs (a) to (f) of the application filed 27 August 2018.

That this matter be adjourned for the further hearing of the said application before me at 9.30 am on Thursday 30 August 2018 (“the adjourned date”).

That the applicant State Central Authority effect service of the application and this Order upon the respondent mother as soon as practicable.

That in the event that the respondent mother has been served with the application by the adjourned date:-

(a) she attend Court personally on 30 August 2018 and remain at Court pending further order of the Court;

(b) subject to paragraph 7 of this Order the mother deliver the child X born … 2018 (“the child”) to the Child Care Room on the 5th Floor of this Registry of the Court by not later than 9.15 am, where the child shall remain pending further order of the Court.

IT IS DIRECTED that my Associate or Court Officer reserve a place in the Child Care Room for the child on the adjourned date from 9.15 am onwards.

That until further order or return of the said child to New Zealand, the Secretary to the Department of Human Services of the State of Victoria or her delegate make such arrangements as are necessary for the purposes of placing the said child with an appropriate person, institution or body and upon such terms and conditions as she shall determine to secure the welfare of the said child pending final determination of this proceeding.

A proper officer of the applicant undertake a home visit at the child’s residence, assesses that the child is that to whom the application relates and that the child is being cared for appropriately and if that officer advises the mother accordingly, the mother is excused from bringing the child Court on the adjourned date.

That such Officers of the Department of Human Services, Victoria, as the Secretary to such department may from time to time direct, be authorised and permitted to visit and enter the place of residence of the respondent and to have such access to the said child as they may reasonably require for the purposes of investigating and determining the welfare of the said child and if considered appropriate to take the said child into care.

That until further order, the respondent by her servants or agents be restrained by injunction from causing or permitting or suffering the said child X, female, … 2018 :-

(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; and

(c) to reside at any other than their present residential address (which must be advised to the applicant’s solicitors in writing) or any other residence at which the applicant has agreed that the said child may reside;

(d) to be assessed by a psychologist, counsellor, medical practitioner or like professional for the sole or ancillary purpose of obtaining evidence for use in this proceeding without the prior written consent of the applicant.

10.

That the prohibition against removal of X born … 2018 from Australia, out of Victoria and from her current residence applies mutatis mutandis to the requesting parent, Mr D, of E Street, Suburb F, New Zealand AND IT IS DIRECTED that the applicant bring this Order to the attention of the requesting central authority so that the requesting parent will have notice of it.

11.

That the respondent, 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 said child or upon which the said child appears and, then, be and is hereby restrained from applying for any further or other passports for the said child pending further orders of this Court.

12.

That a sealed copy of these Orders be provided forthwith to the Marshal of the Family Court of Australia, the Commissioner of the Federal Police and the Secretary of the Commonwealth Department of Foreign Affairs and Trade.

13.

AND IT IS REQUESTED that on the adjourned date the applicant State Central Authority be in a position to inform the Court of what arrangements can be made to support the prompt return of the respondent and the child to New Zealand in the event that I find that the child must be returned to New Zealand pursuant to Regulation 16(1) of the Regulations but that I do not accede to the requesting parent’s proposal that he travel to Australia to collect the child and return with the child to New Zealand.

14.

That I reserve to the requesting parent, Mr D liberty to apply to vary or set aside or discharge any injunctions provided in this Order which affect him or as he may be advised.

15.

Before the adjourned date the applicant obtain instructions and be in a position to inform the court on the adjourned date of the following:-

(a) What arrangements the father makes for payment of airfares of the mother and the child if I ultimately order that the child be returned in the care of the mother;

(b) Whether the requesting parent will agree to mediation.

16.

That pursuant to Section 68L(2) of the Family Law Act 1975 the child X born … 2018 be independently represented AND IT IS REQUESTED that Victoria Legal Aid arrange such independent representation.

17.

That forthwith upon appointment by the said Victoria Legal Aid or otherwise the independent children’s lawyer file a Notice of Address for Service and in the meantime to consider a Hague mediation through Victoria Legal Aid for this matter.

18.

That within 48 hours of notification of such appointment the solicitors for the respective parties provide to the independent children’s lawyer copies of all relevant documents relied upon.

19.

My reasons for decision this day be transcribed and when settled placed on the Court file and a copy provided to the parties.

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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