State Central Authority and Park - [2009] FamCA 1207

FAMILY COURT OF AUSTRALIA

STATE CENTRAL AUTHORITY & PARK

[2009] FamCA 1207

FAMILY LAW – CHILD ABDUCTION – Hague Convention – threshold issues – whether the court should exercise jurisdiction where a welfare order had been made under State Child Protection Legislation – whether there should be a stay of proceedings based on a claimed conflict of interest of the Secretary – question of children’s habitual residence – Regulation 15 Family Law (Child Abduction Convention) Regulation 1986 - whether the children ought to be returned to New Zealand, if they were not habitually resident in New Zealand, as New Zealand was the country of the closest connection to the children

Family Law Act 1975 (Cth) ss 61C, 111B

Family Law (Chid Abduction Convention) Regulations 1986 (Cth) regs 14, 15(1), 16(1A)(a), 16(3)(a)(ii), 16(3)(b),(c),(d)
Children, Young Persons and Their Families Act 1997 (Tas) ss 16, 16(1), 16(2)(c),16 (5), 16(7), 53B, 53B(1)(a)
Personal Information Protection Act 2004 (Tas)

Evidence Act 1995 (Cth)
Care of Children Act 2004 (NZ) ss 15(b) 16, 17(1)
Freedom of Information Act 1991 (Tas)
Judiciary Act 1903 (Cth) s 78B

McCall and State Central Authority; Attorney-General (Cth) (Intervener) (1994) 18 Fam LR 307; (1995) FLC 92–551
De L v Director-General, New South Wales Dept of Community Service (1996) 187 CLR 640; [1996] HCA 5; (1996) 20 Fam LR 390; (1996) FLC 92–706
Commonwealth v Western Australian (Mining Act Case) (1999) 196 CLR 392; [1999] HCA 5
Telstra Corporation v Worthington (1999) 197 CLR 61; [1999] HCA 12
Rothschild v Mullins & Anor [2002] TASSC 100
Punter v Secretary of Justice [2007] 1 NZLR 40
LK Director General, Department Community Services (2009) 237 CLR 582; [2009] HCA 9
DP v Commonwealth Central Authority (2001) 206 CLR 401; [2001] HCA 39
MW v Director-General of the Department of Community Service (2008) 244 ALR 205; [2008] HCA 12

B v B (Re Jurisdiction) (2003) FLC 93–136
Director General, Department of Community Services v Moore (1999); (1999) 24 Fam LR 475: (1999) FLC 92-841
Director-General, Department of Community Services Central Authority v RMS (1999) 27 Fam LR 259; (2000) FLC 93-026

APPLICANT:

Secretary, Department of Health & Human Services (Tasmania) as the State Central Authority

RESPONDENT:

Ms Park

FILE NUMBER:

HBC

946

2009

DATE DELIVERED:

9 December 2009

PLACE DELIVERED:

Hobart

PLACE HEARD:

Hobart

JUDGMENT OF:

Benjamin J

HEARING DATE:

6 & 13 November 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr S Gates

SOLICITOR FOR THE APPLICANT:

Crown Solicitor

COUNSEL FOR THE RESPONDENT:

Mr P Fitzgerald

SOLICITOR FOR THE RESPONDENT:

Ian Guest & Associates

Orders

The Secretary, Department of Health and Human Services (Tasmania) (“Secretary”) is granted leave to disclose information in relation to the Child Welfare proceedings.
The mother Ms Park’s (“the mother’s”) application for a stay of proceedings is dismissed.
The children, B born on … July 2005, T born on … April 2007 and C born on the … July 2008 be returned to New Zealand.
The Secretary make…

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 Park

Details

AGLC: State Central Authority and Park [2009] FamCA 1207
Case: [2009] FamCA 1207
Decision Date: 9 December 2009

CaseChat Overview and Summary

The case involved the Secretary, Department of Health and Human Services (Tasmania) ("Secretary"), and Ms Park ("the mother"), concerning child welfare proceedings and the return of three children to New Zealand. The court was required to determine whether to grant the Secretary leave to disclose information relevant to the child welfare proceedings, whether to grant the mother's application for a stay of proceedings, and ultimately, the arrangements for the children's return to New Zealand.

Benjamin J considered the application for leave to disclose information and the mother's application for a stay. The central issue was the welfare and location of the children, B, T, and C, who were to be returned to New Zealand. The court's reasoning focused on facilitating the children's return to New Zealand in accordance with the Family Law (Child Abduction Convention) Regulations 1986 (Cth).

The court ordered that the Secretary be granted leave to disclose information in relation to the child welfare proceedings and dismissed the mother's application for a stay. The children were ordered to be returned to New Zealand forthwith, with the Secretary to make necessary arrangements for their return, including ensuring they travelled in the company of a nominated person and under specified conditions. The mother was ordered to hand over the children's passports to the Secretary to facilitate their return. The Australian Federal Police were requested to delete any P.A.S.S. alerts in relation to the children upon their departure from Australia to New Zealand.

Orders

Orders of the court

The Secretary, Department of Health and Human Services (Tasmania) (“Secretary”) is granted leave to disclose information in relation to the Child Welfare proceedings.

The mother Ms Park’s (“the mother’s”) application for a stay of proceedings is dismissed.

The children, B born on … July 2005, T born on … April 2007 and C born on the … July 2008 be returned to New Zealand.

The Secretary make such arrangements as are necessary to ensure the return of the children to New Zealand forthwith in the company of such person and upon such conditions as the Secretary considers necessary having regard to the provisions of the Family Law (Child Abduction Convention) Regulations 1986 (Cth).

The mother forthwith hand over to the Secretary any passports she has for the children to facilitate their return to New Zealand in accordance with these orders.

Upon the presentation of the children at any Australian International Airport for departure by the Secretary or his nominee for the children to return to New Zealand in accordance with these orders the Australian Federal Police are requested to delete the P.A.S.S. alert system currently in force in relation to the children and permit their departure from Australia to New Zealand in the company of a person nominated by the Secretary.

Upon the departure of the children from the jurisdiction of Australia in accordance with these orders the Australian Federal Police delete any P.A.S.S alert currently in force in relation to the children.

Leave be given for the Secretary to apply on two days notice in relation to any further machinery orders to give effect to these orders, provided the application for such leave is not made within a period of seven (7) days from the date of these orders.

This matter be otherwise removed from the list of cases requiring determination.

IT IS CERTIFIED

10.

Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

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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