State Central Authority and Raleigh - [2010] FamCA 1127

FAMILY COURT OF AUSTRALIA

STATE CENTRAL AUTHORITY & RALEIGH

[2010] FamCA 1127

FAMILY LAW – CHILD ABDUCTION – Hague Convention proceeding – Application brought by the Director-General of Department of Communities seeking the return of the child to the father in New Zealand – Where the mother successfully applied for a temporary protection order and an interim parenting order from the Family Court in New Zealand – Where there is seeming conflict between the father’s evidence of no criminal history since prior to April 2008 and the subpoenaed material – Where the additional material to be received from New Zealand which will assist the Court – Substantive application adjourned to a date to be fixed

APPLICANT:

Department of Communities (Child Safety Services) as State Central Authority

RESPONDENT:

Ms Raleigh

FILE NUMBER:

BRC

8147

2010

DATE DELIVERED:

9 December 2010
In Chambers

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Barry J

HEARING DATE:

26 October 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Hogan of Counsel appearing for the Applicant

SOLICITORS FOR THE APPLICANT:

Crown Law

COUNSEL FOR THE RESPONDENT:

Mr Green of Counsel appearing for the Respondent Mother

SOLICITORS FOR THE RESPONDENT:

Parker Family Law

Orders

The proceedings be adjourned for review before a Registrar on a date to be fixed.

IT IS NOTED that publication of this judgment under the pseudonym State Central Authority & Raleigh is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC8147/2010

DEPARTMENT OF COMMUNITIES (CHILD SAFETY SERVICES) as State Central Authority

Applicant

And

MS RALEIGH

Respondent

REASONS FOR JUDGMENT

I am asked to determine an application brought by the Director-General, Department of Communities in her capacity as the State Central Authority under the Family Law (Child Abduction Convention) Regulations 1986.
The application seeks the return of the child, O, born in January 2010 to New Zealand.
The requesting party is the child’s father, Mr C born in 1986, a resident of New Zealand.
The Respondent to the application is the child’s mother, Ms Raleigh, born in 1989.
The Respondent opposes the making of an order for the return of the child on two grounds:
a.pursuant to Regulation 16(3)(a)(ii) the Father subsequently acquiesced in the child being retained in Australia; and
b.pursuant to Regulation 16(3)(b) there is a grave risk that the return of the child would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.
Regulation 4 of the Child Abduction Convention Regulations is in the following terms:
“4.For the purpose of sub regulation (3) the Court must take into account any information relating to the social background of the child that is provided by the Central Authority or other competent Authority of the country in which the child habitually resided in immediately before his or her removal or retention.”
The Mother came to Australia with the child on 2 May 2010 and has remained in this country since that time.
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 Raleigh

Details

AGLC: State Central Authority and Raleigh [2010] FamCA 1127
Case: [2010] FamCA 1127
Decision Date: 9 December 2010 In Chambers

CaseChat Overview and Summary

The case of *State Central Authority and Raleigh* concerned an application brought by the State Central Authority. The precise nature of the dispute is not detailed, but it involved Raleigh, who was the respondent. The matter was heard by Barry J in the Supreme Court of Tasmania.

The central legal issue before the Court was the determination of whether to grant an adjournment for a review of the proceedings before a Registrar. This required the Court to consider the appropriate course of action in managing the case and ensuring a fair and efficient process.

Barry J ordered that the proceedings be adjourned for review before a Registrar on a date to be fixed. This indicates that the Court found it necessary to postpone the immediate finalisation of the matter and instead directed it towards a further procedural step involving a Registrar.

Orders

Orders of the court

The proceedings be adjourned for review before a Registrar on a date to be fixed.

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.