State Central Authority and Spring-Ernst - [2013] FamCA 653

FAMILY COURT OF AUSTRALIA

STATE CENTRAL AUTHORITY & SPRING-ERNST

[2013] FamCA 653

FAMILY LAW – CHILD ABDUCTION – Hague Convention – case management – request for appointment of an independent children’s lawyer – mediation – evidence of abductor’s ability to re-enter USA – arranging access between children and left behind parent.

Family Law (Child Abduction Convention) Regulations 1986 (Cth)

APPLICANT:

State Central Authority

RESPONDENT:

Ms Spring-Ernst

REQUESTING PARENT:

Mr Enst

FILE NUMBER:

MLC

3927

2013

DATE DELIVERED:

24 June 2013

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Bennett J

HEARING DATE:

24 June 2013

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Ms Nolan, Department of Human Services, Legal Services Branch

SOLICITOR FOR THE RESPONDENT:

Ms Viravout, Berger Kordos

SOLICITOR FOR THE REQUESTING PARENT:

Ms Humphreys, Kennedy Partners

Orders

IT IS ORDERED THAT:

1.The parenting proceedings commenced by the mother’s application filed 20 May 2013 be stayed pending further order of this Court or the outcome of the proceedings pursuant to the Family Law (Child Abduction Convention) Regulations 1986, whichever first occurs.
2.For ease of reference, henceforth the respondent to the parenting proceedings who is also the requesting parent in this proceeding be referred to as “the father” and the applicant for the parenting proceedings and the respondent for these return proceedings be referred to as “the mother”.
3.For the avoidance of doubt, the applicant State Central Authority may inspect any documents on the Court file, including those in the parenting proceedings.
4.The application of the State Central Authority filed on 17 June 2013 seeking the return of the children J Spring-Ernst born … 2006 and F Spring-Ernst born … 2008 to the United States of America be set down for final hearing before me on 22 August 2013 estimated to take 2 to 3 days.
5.On or before 12.00 noon on 11 July 2013 the mother make file and serve:-
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 children, or either of them, to the United States of America;
b)      all evidence in support of her case;
c)      without prejudice to her opposition to return, precise details of what conditions precedent to return she would seek in the event that, contrary to her case, the children are ordered to be returned NOTING THAT such conditions may include her desire to accompany the children back to the United States of America.
6.By not later than 12.00 noon on 23 July 2013 the applicant State Central Authority file and serve any further evidence upon which it relies.
7.Until further order, each party is at liberty to cause subpoena(s) to issue returnable in any subpoena list until the final hearing or on any date appointed by Registrars Sikiotis for the return of subpoena or on any date notified to the parties by my Chambers for the return of subpeoana(s).
8.Until further order, the mother by herself her servants or agents…

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 Spring-Ernst

Details

AGLC: State Central Authority and Spring-Ernst [2013] FamCA 653
Case: [2013] FamCA 653
Decision Date

CaseChat Overview and Summary

The Family Court of Australia heard an application by the State Central Authority seeking the return of two children, J and F Spring-Ernst, to the United States of America, pursuant to the Family Law (Child Abduction Convention) Regulations 1986. The respondent mother, Ms Spring-Ernst, opposed the return, while the requesting parent, Mr Ernst, sought the children's return. The court also noted that parenting proceedings previously commenced by the mother would be stayed pending the outcome of the abduction application.

The court was required to determine the legal issues surrounding the alleged wrongful removal of the children from the United States. Specifically, the court needed to consider the mother's assertion that the return was not wrongful because she attempted but was unable to return the children to the USA. The court also had to address the children's expressed distress and potential psychological impact of a return, as well as the practicalities of arranging their re-entry into the United States, including visa issues and the father's ability to travel.

Justice Bennett acknowledged the urgency of Hague Convention applications and scheduled a final hearing for August 2013. The court made several case management orders, including requiring the mother to file precise details of her opposition to return and any proposed conditions for return, and directing the State Central Authority to file further evidence. Crucially, the court ordered that the children's interests be independently represented by a lawyer, requesting Victoria Legal Aid to arrange this appointment, with the independent children's lawyer tasked with assessing the feasibility of mediation and access arrangements. The court also imposed restrictions on psychological assessments of the children without prior consent and directed a family consultant to prepare a report.

Orders