State Central Authority and Trembath - [2014] FamCA 468

FAMILY COURT OF AUSTRALIA

STATE CENTRAL AUTHORITY & TREMBATH

[2014] FamCA 468

FAMILY LAW – CHILD ABDUCTION – Hague Convention – children brought to Australia by father – application by State Central Authority for the children to be returned to their mother in Canada – mother a Canadian citizen and father an Australian citizen – where both parents had travelled to Canada – where mother alleges it was a relocation – father alleges not relocation but visit for up to twelve months only – whether children were habitually resident in Canada at the time of the alleged wrongful removal – whether children had one or more or no place of habitual residence – consideration of the phrase “habitually resident” – children were habitually resident in Australia at the time of their removal from Canada – application for return dismissed.

Family Law Act 1975 (Cth) s 111B
Family Law (Child Abduction Convention) Regulations 1986 (Cth) Reg 16, 29
Convention on the Civil Aspects of International Child Abduction signed at The Hague on 25 October 1980

Department of Family and Community Services & Svoboda (No. 2) [2012] FamCA 1108
In the matter ofLC (Children) (No. 2 ) [2014] UKSC 1
LK v Director-General, Department of Community Services (2009) 237 CLR 582
State Central Authority & McCall (1995) FLC 92-552
Re J (a minor) (Abduction)(1992) AC 562
State Central Authority &Camden (2012) 46 Fam LR 583
Ustinov & South Australian State Central Authority [2008] FamCAFC 110

APPLICANT:

State Central Authority

RESPONDENT:

Mr Trembath

FILE NUMBER:

ADC

4657

2013

DATE DELIVERED:

1 July 2014

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Dawe J

HEARING DATE:

19, 20, 21, 24 Feb 2014 & 24 March 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Olsson

SOLICITOR FOR THE APPLICANT:

Crown Solicitor's Office

COUNSEL FOR THE RESPONDENT:

Ms Cocks

SOLICITOR FOR THE RESPONDENT:

Andersons Solicitors

Orders

The Form 2 Initiating Application filed by the State Central Authority on 5 December 2013 is dismissed and removed from the active pending list.

IT IS NOTED that publication of this judgment by this Court under the pseudonym State Central Authority & Trembath has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 4657 of 2013

Commissioner Of Police South Australia (State Central Authority)

Applicant

And

Mr Trembath

Respondent

REASONS FOR JUDGMENT

Introduction

The State Central Authority (“the SCA”) filed an application pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”) seeking final orders for S, born … 2005, and N, born … 2007 (”the children”) to be returned to Canada.
The application was brought on behalf of the mother, Ms Trembath, who currently resides in Province B, Canada. The father, Mr Trembath, is the respondent in these proceedings. The father currently resides with the children on a rural property in the Town C area of South Australia.
On 5 December 2013 the SCA filed a…

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.

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Details

Case: [2014] FamCA 468
Decision Date

CaseChat Overview and Summary

The State Central Authority (SCA) applied to the Family Court of Australia on behalf of the mother, Ms Trembath, for the return of her two children to Canada. The father, Mr Trembath, was the respondent. The SCA contended that the children had been wrongfully removed from Canada by the father, and that they were habitually resident in Canada at the time of their removal. The father argued that the children were habitually resident in Australia, or alternatively, had no habitual residence at the time of their removal from Canada.

The central legal issue before the Court was to determine the habitual residence of the children immediately prior to their removal from Canada. This determination was crucial for establishing whether the removal was wrongful under the Hague Convention and the relevant Australian regulations. The Court was required to consider the meaning of "habitually resident" in the context of international child abduction proceedings, applying the principles outlined in the Convention and the Family Law Act 1975 (Cth) and its associated regulations.

The Court considered the history of the parties' relationship, their movements between Australia and Canada, and the circumstances surrounding their relocation to Canada in June 2013. It noted that the children had lived in Australia for most of their lives, holding dual citizenship, and that the family had made significant arrangements for a prolonged stay in Canada, including enrolling the children in school, obtaining employment for the mother, and making improvements to a property. However, the Court also noted the father's temporary return to Australia in September 2013 for a sporting event, and his subsequent purchase of flights for himself and the children and their removal from Canada on 20 October 2013, without the mother's consent. Despite these events, the Court found that the children's habitual residence was Australia at the time of their removal from Canada, and therefore the application for their return to Canada was dismissed.

Orders