State Central Authority and Muteki (No 3) - [2018] FamCA 820

FAMILY COURT OF AUSTRALIA

STATE CENTRAL AUTHORITY & MUTEKI (NO. 3)

[2018] FamCA 820

FAMILY LAW – CHILD ABDUCTION – Wrongful removal conceded – exception of consent found not to apply – exception of grave risk of harm not accepted – child ordered returned.

FAMILY LAW – CHILD ABDUCTION – purpose of mediation – conditions to return having regard to mother’s care of young child (eight months).

FAMILY LAW – CHILD ABDUCTION – role of independent children’s lawyer

Family Law (Child Abduction Convention) Regulations 1986

DP v Commonwealth Central Authority; JLM v Director-General NSW Department of Community Services (2001) 206 CLR 401
H v H (Abduction: Acquiescence) [1996] 2 FLR 570
Jones v Dunkel (1959) 101 CLR 298
Re C (Abduction: Consent) [1996] 1 FLR 414
Re E (Children) (FC) (2011) UKSC 27
Re H (Minors) (Abduction: Custody Rights) and Re S (Minors) (Abduction: Custody Rights) [1991] 2AC476
Re M (Abduction)(Consent: Acquiescence) [1999] 1 FLR 171
Re P-J [2009] EWCA 588
TB v JB [2000] EWCA Civ 337
W v W (Child Abduction: Acquiescence) [1993] 2 FLR 211
Wenceslas v Director-General, Department of Community Services [2007] FamCA 398

APPLICANT:

State Central Authority

RESPONDENT:

Ms Muteki

INDEPENDENT CHILDREN’S LAWYER:

Ms C Smith

FILE NUMBER:

MLC

9904

2018

DATE DELIVERED:

1 October 2018

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Bennett J

HEARING DATE:

1 October 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Greenham

SOLICITOR FOR THE APPLICANT:

State Central Authority,

Department of Health and Human Services, Legal Services Branch

COUNSEL FOR THE RESPONDENT:

Ms Byrnes

SOLICITOR FOR THE RESPONDENT:

Ebejer & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER

Ms Dwyer

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER

Victoria Legal Aid

Orders

IT IS ORDERED THAT

Subject to compliance with paragraph 6 of this Order, the child, X, born … 2018 (‘the child’) be returned to New Zealand pursuant to the Family Law (Child Abduction Convention) Regulations 1989.
The child be returned within 45 days of the date of compliance by the father with paragraph 6 of this Order and the Respondent notify the Applicant and the Independent Children’s Lawyer of her proposed date of departure as soon as practicable upon making such arrangements and provide a copy of the tickets.
The Australian Central Authority notify the New Zealand Central Authority of the mother’s date of departure but the father not be provided with details of the mother and child’s travel.
Within 7 days of return to New Zealand the mother inform the requesting parent’s solicitor, Ms G … of an address for service for her in New Zealand.
The respondent be at liberty to accompany the child to New Zealand. If the respondent cannot or will not accompany the child, she provide not less than 30 days’ notice that eventuality to the applicant State Central Authority. In the event that the Respondent does not accompany the child to New Zealand, the requesting parent be and is hereby authorised to collect the child and return the child to New Zealand.

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 3)

Details

AGLC: State Central Authority and Muteki (No 3) [2018] FamCA 820
Case: [2018] FamCA 820
Decision Date: 1 October 2018

CaseChat Overview and Summary

This matter concerned an application by the State Central Authority for the return of a child, X, to New Zealand under the Family Law (Child Abduction Convention) Regulations 1986. The wrongful removal of the child was conceded by the respondent mother. The court was required to determine whether any exceptions to the child’s return applied, specifically the exceptions relating to consent and a grave risk of harm.

Bennett J considered the purpose of mediation in such proceedings and the specific circumstances of the respondent mother caring for a young child. The court also noted the role of the independent children’s lawyer in the proceedings. The primary legal issue was whether the child should be returned to New Zealand, and if so, under what conditions, given the mother's concerns for her safety and well-being.

The court found that the exception of consent did not apply and that the exception of a grave risk of harm was not accepted. Consequently, the court ordered the child's return to New Zealand. However, the return was made conditional upon the requesting parent, the father, taking specific steps to ensure the mother's safety and well-being upon their return. These conditions included payment for return flights, obtaining a New Zealand parenting order that provided for the child to reside with the mother and restricted the father's access for an initial period, and obtaining a New Zealand protection order against the father. The court also made orders restraining the mother from removing the child from Australia pending departure and from removing the child from Victoria.

Orders

Orders of the court

IT IS ORDERED THAT

Subject to compliance with paragraph 6 of this Order, the child, X, born … 2018 (‘the child’) be returned to New Zealand pursuant to the Family Law (Child Abduction Convention) Regulations 1989.

The child be returned within 45 days of the date of compliance by the father with paragraph 6 of this Order and the Respondent notify the Applicant and the Independent Children’s Lawyer of her proposed date of departure as soon as practicable upon making such arrangements and provide a copy of the tickets.

The Australian Central Authority notify the New Zealand Central Authority of the mother’s date of departure but the father not be provided with details of the mother and child’s travel.

Within 7 days of return to New Zealand the mother inform the requesting parent’s solicitor, Ms G … of an address for service for her in New Zealand.

The respondent be at liberty to accompany the child to New Zealand. If the respondent cannot or will not accompany the child, she provide not less than 30 days’ notice that eventuality to the applicant State Central Authority. In the event that the Respondent does not accompany the child to New Zealand, the requesting parent be and is hereby authorised to collect the child and return the child to New Zealand.

The return of the child to New Zealand is conditional upon the requesting parent, Mr D, of E Street, Suburb F, City H, New Zealand doing all acts and things necessary to effect the following and the following being effected:-

(a) Paying for the return flights for the respondent mother (unless she gives notice pursuant to paragraph 5 of this Order) and the child from Tullamarine Airport in Melbourne to City H in New Zealand such payment to be made by the father depositing into an account nominated by the independent Children’s lawyer the sum of AUD$700, such payment to be made within 60 days and any monies not required for the economy fares of the mother and the child be remitted to the father;

(b) Obtain a parenting order in a court of competent jurisdiction in New Zealand which provides that:-

(i) Upon the mother and child re-entering New Zealand the child reside with the mother until such time as a court in New Zealand otherwise orders and, in any event, until the expiration of 21 days after the child’s return to New Zealand;

(ii) The father not have access or communication with the child:-

(iii) unless it is with the mother’s prior written consent and then on the dates and for the times agreed to and stated by the mother; or failing agreement;

(iv) until such time as a court in New Zealand otherwise orders and, in any event, not sooner than 21 days after the child’s return to New Zealand.

(v) The father be and is hereby restrained from causing permitting or suffering the mother to be required to attend court and/or to file or serve documentation in relation to parenting proceedings or proceedings for a protection order any sooner than the expiration of 21 days from her re-entry into New Zealand;

(vi) Once the child is returned to New Zealand, both parents be restrained by injunction from causing, permitting or suffering the child to be removed from New Zealand pending an order of a court in New Zealand enabling him/her to do so.

(i) from contacting the mother;

(ii) knowingly approaching or remaining within 100 metres of any place at which the mother resides or is employed or attends for the purpose of education or training or her father’s home at J Street, Suburb K, City H; and

(iii) otherwise in the terms of the usual conditions provided in s19 of the Domestic Violence Act 1995(NZ);

(iv) such order to last for not less than 21 days following the mother’s return to New Zealand.

AND IT IS NOTED that the protective measures referred to herein are obtained by way of reassurance for the respondent mother and to facilitate her return of the child to New Zealand within a short period of time pursuant to this Order made pursuant to the Family Law (Child Abduction Convention) Regulations 1986 which implement into Australian law the provisions of the Convention on the Civil Aspects of International Child Abduction signed at The Hague on 25 October 1980. AND IT IS FURTHER NOTED that the protective measures have been required without prejudice to the right of the respondent mother and/or the requesting parent to apply to the court(s) of competent jurisdiction in New Zealand to vary or set aside same or as either parent may be advised after the expiration of the 21 days referred to in sub-paragraph 4(b)(iii) of this Order.

The respondent mother not impede the requesting parent from doing the acts and things referred to in the preceding paragraph of this Order and, if requested to do so, the respondent mother provide any consent to the issuance of the said orders.

There be liberty to apply on short notice for a variation of this Order in the event that it is not possible for the father to make an application for a protection order to operate against himself and, consequently, any necessary application must be made by the respondent mother.

Paragraph 11 of the Order made on 27 August 2018 is hereby discharged and the Respondent or her nominee authorised in writing is permitted to collect the child’s passport immediately upon receipt of a sealed copy of this order.

10.

Pending the child’s departure from Australia for return to New Zealand, the Respondent continue to be restrained and an injunction issue restraining her from causing or permitting or suffering the child:

(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 apply for any further or other passport or passports for the child;

(d) to reside at any other than her present residential address or any other residence at which the Applicant has agreed that the said child may reside.

11.

Paragraph 10 of this order remains in force, until a letter from the Applicant is received by the Australian Federal Police advising of the travel arrangements made for the child’s return to New Zealand AND IT IS REQUESTED that the Australian Federal Police remove the name of the child X, female, born … 2018 from the Airport Watch List upon presentation for boarding the nominated flight to New Zealand on the date nominated for the said travel.

12.

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 Police Forces and services of the States and Territories of the Commonwealth of Australia and the Secretary of the Commonwealth Department of Foreign Affairs and Trade.

13.

The Marshal of the Family Court of Australia and the Commissioner and all Federal Agents of the Australian Federal Police and Officers of the Police Forces and Services of the States and Territories of the Commonwealth of Australia are requested and empowered to take all necessary steps to give effect to these orders.

14.

Liberty is reserved to the parties to apply urgently in relation to the implementation of this order.

15.

The time in which a Notice of Appeal can be lodged against this decision is extended to 30 days after the publication of my reasons for decision.

16.

Otherwise the application of the State Central Authority be and is hereby dismissed.

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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