State Central Authority and Wattey

[2008] FamCA 1108

FAMILY COURT OF AUSTRALIA

STATE CENTRAL AUTHORITY & WATTEY [2008] FamCA 1108

FAMILY LAW – CHILD ABDUCTION – Hague Convention – Habitual residence

APPLICANT: STATE CENTRAL AUTHORITY

RESPONDENT: MS WATTEY

FILE NUMBER: MLC 7568 of 2008

DATE DELIVERED: 16 DECEMBER 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: BENNETT J

HEARING DATE: 11 NOVEMBER 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: MS GREENHAM

SOLICITOR FOR THE APPLICANT: SECRETARY TO THE DEPARTMENT OF HUMAN SERVICES

COUNSEL FOR THE RESPONDENT: MS J STEWART

SOLICITOR FOR THE RESPONDENT: MASON SIER TURNBULL

Orders

IT IS ORDERED:

1. That the application of the State Central Authority be and is hereby dismissed.

IT IS DIRECTED:

1. That a copy of my reasons for judgment herein be placed on the file proceedings number MLC6076 of 2008, being the parenting proceedings between MS WATTEY and MR FORTESCUE.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 7568 of 2008

STATE CENTRAL AUTHORITY 

Applicant

And

MS WATTEY

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application by the State Central Authority filed on 20 August 2008 seeking the return of … (“the child”) born in July 2007 to England, United Kingdom pursuant to the provisions of the Family Law (Child Abduction Convention) Regulations 1986 (“the Regulations”). The Regulations import into domestic law the provisions of the Convention on the Civil Aspects of International Child Abduction which was concluded at The Hague on 25 October 1980 (“the 1980 Convention”).

2. The purpose of the 1980 Convention is to provide that children who are wrongfully removed to, or retained in, Australia are returned to the Convention country in which they were habitually resident immediately prior to the wrongful removal so that appropriate arrangements can be made for them within the legal and social framework of that habitual residence.

3. The requesting parent, at whose behest the application is brought is the child’s father, MR FORTESCUE.  He is a citizen and resident of England.

4. The respondent mother is MS WATTEY.  She is an Australian citizen.  The child and the respondent mother are currently in Melbourne, Australia.

5. It is conceded by the respondent that the 1980 Convention is in force between Australia and England. 

6. Relevantly, reg 16 of the Regulations provides:

   16(1) If:

   (a) an application is made to a court under subregulation 14 (1) [as is the present application] for an order for the return of a child who has been removed to, or retained in, Australia; and

   (b) the application is made within one year of the child’s removal or retention; and

   (c) the responsible Central Authority or Article 3 applicant satisfies the court that the child’s removal or retention was wrongful under subregulation (1A);

   the court must, subject to subregulation (3), make the order.

   16(1A) For subregulation (1), a child’s removal to, or retention in, Australia is wrongful if:

   (a) the child was under 16;…