State Central Authority and Muteki (No. 4) - [2018] FamCA 923

FAMILY COURT OF AUSTRALIA

STATE CENTRAL AUTHORITY & MUTEKI (NO. 4)

[2018] FamCA 923

FAMILY LAW – CHILD ABDUCTION – variation of conditions to return – machinery provisions – direct judicial communication between Network Judges

APPLICANT:

State Central Authority

RESPONDENT:

Ms Muteki

INDEPENDENT CHILDREN’S LAWYER:

Ms Smith

FILE NUMBER:

MLC

9904

2018

DATE DELIVERED:

8 November 2018

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Bennett J

HEARING DATE:

8 November 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT:

Mr Marasco – Department of Health and Human Services Legal Services Branch

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

Ms Littorin – Ebejer & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER

SOLICTOR FOR THE INDEPENDENT CHILDREN’SLAWYER

Ms Smith - Victoria Legal Aid

Orders

1.Paragraph 6 of the Order made on 1 October 2018 be varied so that the respondent mother be and is hereby responsible for obtaining the orders and protective measures referred to in paragraphs 6(b) and (c) of the Order. For the avoidance of doubt, the domestic violence order is to cover the mother but not the child.
2.There be liberty to apply on short notice in the event of alleged non-compliance with, or opposition by, the requesting parent with the mother’s application for the orders in New Zealand.
3.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 that the mother has obtained the services of a lawyer in City H, has completed a legal aid application form and informed the court of her proposed arrangement to return with the child to New Zealand.

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 & Muteki (No. 4) 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 9904 of 2018

State Central Authority

Applicant

And

Ms Muteki

Respondent

And

Independent Children’s Lawyer

EX-TEMPORE REASONS FOR JUDGMENT

This matter comes before me pursuant to the liberty to apply, which was reserved by paragraph 14 of the Order which I made on 1 October 2018 returning the infant, X, born in 2018, to New Zealand pursuant to the Family Law (Child Abduction Convention) Regulations 1989.
The return order was subject to various conditions, including the father, who is the requesting parent and Article 3 applicant, obtaining temporary parenting orders in favour of the mother and an order under section 14 of the Domestic Violence Act 1995 (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. 4)

Details

AGLC: State Central Authority and Muteki (No. 4) [2018] FamCA 923
Case: [2018] FamCA 923
Decision Date: 8 November 2018

CaseChat Overview and Summary

In the matter of *State Central Authority and Muteki (No. 4)*, Bennett J of the Family Court of Australia considered an application to vary an existing order concerning the welfare and protection of a child. The dispute arose from an order made on 1 October 2018, which required certain protective measures to be put in place. The application sought to alter the responsibility for obtaining these measures.

The central legal issue before the court was whether to vary paragraph 6 of the previous order. Specifically, the court had to determine who should be responsible for obtaining the orders and protective measures referred to in paragraphs 6(b) and (c) of the 1 October 2018 order, and whether a domestic violence order should extend to cover the mother but not the child.

Bennett J varied the order, assigning responsibility for obtaining the specified orders and protective measures to the respondent mother. The court clarified that the domestic violence order was to protect the mother, not the child. Liberty to apply on short notice was granted in instances of alleged non-compliance or opposition to the mother's application for orders in New Zealand. The court noted the mother had secured legal representation in City H, completed a legal aid application, and informed the court of her intention to return to New Zealand with the child.

Orders

Orders of the court

1. Paragraph 6 of the Order made on 1 October 2018 be varied so that the respondent mother be and is hereby responsible for obtaining the orders and protective measures referred to in paragraphs 6(b) and (c) of the Order. For the avoidance of doubt, the domestic violence order is to cover the mother but not the child.

2. There be liberty to apply on short notice in the event of alleged non-compliance with, or opposition by, the requesting parent with the mother’s application for the orders in New Zealand.

3. 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 that the mother has obtained the services of a lawyer in City H, has completed a legal aid application form and informed the court of her proposed arrangement to return with the child to New Zealand.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.