State Central Authority and Muteki (No 2) - [2018] FamCA 783

FAMILY COURT OF AUSTRALIA

STATE CENTRAL AUTHORITY & MUTEKI (NO 2)

[2018] FamCA 783

FAMILY LAW – CASE MANAGEMENT – Hague return application to New Zealand– directions for trial.

FAMILY LAW – CHILD ABDUCTION – use of protective measures - endorsement of four step process outlined by United Kingdom Supreme Court in Re E (Children) (FC) [2011] UKSC 27 with modifications for Australian conditions.

FAMILY LAW – CHILD ABDUCTION – direct judicial communication between Australia and New Zealand.

FAMILY LAW – CHILD ABDUCTION – case management – requesting parent refused to participate in mediation.

APPLICANT:

State Central Authority

RESPONDENT:

Ms Muteki

INDEPENDENT CHILDREN’S LAWYER:

Ms C. Smith

FILE NUMBER:

MLC

9904

2018

DATE DELIVERED:

6 September 2018

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Bennett J

HEARING DATE:

6 September 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Marasco

SOLICITOR FOR THE APPLICANT:

State Central Authority,

Department of Human Services, Legal Service Branch

COUNSEL FOR THE RESPONDENT:

In person

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER

Victoria Legal Aid

Orders

IT IS ORDERED:

(1)That this matter be fixed for final hearing before me on 1 October 2018 at 10.00 am subject to part-heard cases only.
(2)The respondent mother file and serve by not later than 12.00 noon on 17 September 2018 at 2.00 pm:-
a)any response upon which she proposes to rely at the final hearing in which she specifies with precision the basis (if any) upon which she opposes the return of the child X, female, born … 2018 (“the child”) to New Zealand pursuant to Regulations 16(1A) or 16(3) of the Family Law (Child Abduction Regulations) 1986 (“the Regulations”);
b)all evidence in support of her case; and
c)without prejudice to her opposition to return, precise details of what conditions precedent to return, contrary to her case, in the event that the child is ordered to be returned to New Zealand.
(3)That the Applicant State Central Authority file and serve any further evidence upon which it relies by not later than 4.00 pm on Tuesday 25 September 2018 at 2.00 pm.
(4)Until further order, each party is at liberty to cause subpoena to produce documents to issue returnable until the final hearing.
(5)The applicant State Central Authority discuss with the Independent Children’s Lawyer and the mother the likely cost and means of purchase of flight tickets for the mother and the child back to New Zealand with a view to securing a commitment from the requesting parent to pay the said fares.
(6)The child the child be released from the child minding room of this Registry of the Court into the care of the respondent mother.
(7)My reasons for decision this day be transcribed and when settled placed on the Court file and a copy provided to the parties.

AND IT IS NOTED:

A.That the parties consent to direct judicial communication with the Hague Network Judge for New Zealand about protection orders from the Family Court of New…

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 (No 2)

Details

AGLC: State Central Authority and Muteki (No 2) [2018] FamCA 783
Case: [2018] FamCA 783
Decision Date: 6 September 2018

CaseChat Overview and Summary

In the matter of *State Central Authority and Muteki (No 2)*, Bennett J of the Family Court of Australia considered directions for a Hague Convention child abduction return application. The application concerned the return of a child, X, to New Zealand, with the State Central Authority acting as the applicant and the child's mother as the respondent.

The court was required to determine the procedural steps necessary for the final hearing of the child abduction application. This included setting a hearing date, establishing strict timelines for the filing and service of evidence by both parties, and addressing the potential for protective measures and the costs associated with the child's return. The court also considered the respondent mother's opposition to the child's return and her proposed conditions precedent to return, should an order for return be made.

Bennett J endorsed a modified four-step process, drawing from the United Kingdom Supreme Court's decision in *Re E (Children) (FC)*, for addressing child abduction cases under the Hague Convention within the Australian legal framework. The court emphasised the importance of precise pleadings and evidence, particularly regarding the grounds for opposing return and any proposed protective conditions. The judge also noted the parties' consent to direct judicial communication with the Hague Network Judge for New Zealand regarding protection orders and the requesting parent's refusal to participate in mediation, despite offering to fund return flights.

The court made specific orders for the final hearing to be fixed for 1 October 2018, with detailed requirements for the filing and service of evidence by both the respondent mother and the applicant State Central Authority. Further directions were given regarding the potential issuance of subpoenas for documents and the discussion of flight ticket costs. The child was to be released into the care of the respondent mother until further order.

Orders

Orders of the court

IT IS ORDERED:

(1) That this matter be fixed for final hearing before me on 1 October 2018 at 10.00 am subject to part-heard cases only.

(2) The respondent mother file and serve by not later than 12.00 noon on 17 September 2018 at 2.00 pm:-

a) any response upon which she proposes to rely at the final hearing in which she specifies with precision the basis (if any) upon which she opposes the return of the child X, female, born … 2018 (“the child”) to New Zealand pursuant to Regulations 16(1A) or 16(3) of the Family Law (Child Abduction Regulations) 1986 (“the Regulations”);

b) all evidence in support of her case; and

c) without prejudice to her opposition to return, precise details of what conditions precedent to return, contrary to her case, in the event that the child is ordered to be returned to New Zealand.

(3) That the Applicant State Central Authority file and serve any further evidence upon which it relies by not later than 4.00 pm on Tuesday 25 September 2018 at 2.00 pm.

(4) Until further order, each party is at liberty to cause subpoena to produce documents to issue returnable until the final hearing.

(5) The applicant State Central Authority discuss with the Independent Children’s Lawyer and the mother the likely cost and means of purchase of flight tickets for the mother and the child back to New Zealand with a view to securing a commitment from the requesting parent to pay the said fares.

(6) The child the child be released from the child minding room of this Registry of the Court into the care of the respondent mother.

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

AND IT IS NOTED:

A. That the parties consent to direct judicial communication with the Hague Network Judge for New Zealand about protection orders from the Family Court of New Zealand under the Family Violence Protection Act 1995 (NZ).

B. That the requesting parent has declined to participate in mediations but says he will fund the return flights of the mother and the child to New Zealand in the event that the child is ordered to be returned.

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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