STATE CENTRAL AUTHORITY & CAMDEN - [2012] FamCAFC 45

FAMILY COURT OF AUSTRALIA

STATE CENTRAL AUTHORITY & CAMDEN

[2012] FamCAFC 45

FAMILY LAW – APPEAL – CHILD ABDUCTION – Hague Convention – Habitual residence – where the parties and their children had moved from Australia to the United Kingdom and after ten months the mother returned with the children to Australia – where the trial Judge dismissed the State Central Authority’s application for the children to be returned to the United Kingdom – whether the trial Judge erred in her consideration of the Full Court’s decision in Zotkiewicz & Commissioner of Police (No 2) (2011) FLC 93-472 in applying the test for determining the children’s habitual residence and failing to properly take into account all relevant matters – where the trial Judge erred in dividing the habitual residence test into two separate exercises, putting aside her finding that the parties’ had a shared intention for the children to reside in the United Kingdom before focusing on the mother’s social integration and the parties’ financial viability in the United Kingdom – where the High Court’s decision in LK v Director-General, Department of Community Services (2009) 237 CLR 582 has authoritatively settled the principles applicable in determining habitual residence and the Full Court’s decision in Zotkiewicz has not prescribed a new two limbed test to be applied in every new case but rather determined that particular case – where the trial judge also erred in giving insufficient weight to the combination of her findings about the parties’ settled purpose and the fact that they had been living in the United Kingdom pursuant to that settled purpose for ten months at the time of the mother’s unilateral removal of the children from the country – where the trial judge attributed too much weight to the mother’s unhappiness in the United Kingdom – appeal allowed.

FAMILY LAW – APPEAL – COSTS – where the State Central Authority conceded that a costs order should not be made against the mother in the event the appeal is successful on the basis that s 14(1)(e) of the Federal Proceedings (Costs) Act 1981 (Cth) appears to prevent a grant of a certificate to the State Central Authority – where the mother sought a costs certificate – no order made as to costs and costs certificates granted to the mother in relation to the appeal and the new trial pursuant to s 6 and s8 of the Federal Proceedings (Costs) Act 1981 (Cth).

Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 8 and 14(1)(e)
Family Law (Child Abduction Convention) Regulations 1986 (Cth) reg 14 and reg 16

LK v Director-General, Department of Community Services (2009) 237 CLR 582
Punter v Secretary for Justice [2007] 1 NZLR 40
Zotkiewicz & Commissioner of Police (No 2) (2011) FLC 93-472

APPELLANT:

State Central Authority

RESPONDENT:

Ms Camden

FILE NUMBER:

MLC

5776

2011

APPEAL NUMBER:

SOA

2011

DATE DELIVERED:

22 March 2012

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Finn, Strickland and Forrest JJ

HEARING DATE:

16…

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: [2012] FamCAFC 45
Decision Date: 22 March 2012

CaseChat Overview and Summary

The State Central Authority and Camden sought the return of two children to the United Kingdom after the mother, Camden, had returned with them to Australia. Camden had initially moved to the United Kingdom with the children, accompanied by the father, who remained there after she returned to Australia. The State Central Authority filed an application for the children's return under the Hague Convention on the Civil Aspects of International Child Abduction, which was dismissed by the trial judge. The High Court of Australia was asked to determine if the trial judge had erred in applying the test for determining the children's habitual residence.

The central legal issue was whether the trial judge had correctly applied the test for determining the children's habitual residence. The court examined if the trial judge had erred by dividing the habitual residence test into two separate exercises and by not adequately considering the parents' shared intention for the children to reside in the United Kingdom. The High Court needed to determine if the trial judge had appropriately assessed the parents' settled purpose and the children's integration into the United Kingdom.

The High Court found that the trial judge had indeed erred in her application of the habitual residence test. The Court held that the Full Court's decision in Zotkiewicz did not establish a new two-limbed test, but rather addressed the specific circumstances of that case. The High Court emphasised that the principles for determining habitual residence had been authoritatively settled by the decision in LK v Director-General, Department of Community Services. The Court concluded that the trial judge had incorrectly weighted the mother's social integration and financial considerations over the shared intention of the parents for the children to reside in the United Kingdom.

The appeal was allowed, and the orders made by the trial judge were set aside. The application was remitted for rehearing by a different judge. No order was made regarding costs, and the Court granted the mother a costs certificate for the appeal and any new trial proceedings.

Orders

Orders of the court

The appeal be allowed.

The orders made by the Honourable Justice Bennett on 12 August 2012 be set aside.

The State Central Authority’s application filed 30 June 2011 be remitted for rehearing by a Judge other than the Honourable Justice Bennett.

There be no order as to costs.

The Court grants to the respondent mother a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent mother in respect of the costs incurred by her in relation to the appeal.

The Court grants to the respondent mother a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent mother in respect of such part as the Attorney-General considers appropriate of any costs incurred by the respondent mother in relation to the new trial granted by these orders.

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

However, after having initially made the significant finding that the parents “had a shared intention that the children would reside in the United Kingdom for the time being”, a finding clearly open to her Honour and not subject to any challenge on this appeal, her Honour went on to say (at paragraph 104):-For the purpose of determining whether “the underlying reality of the connection between the [children and the United Kingdom] was such as to justify a finding [that [T] and [J] were] habitually resident” there, I look to the extent to which the parents had become integrated. That is, both parents, either individually or as a unit. I accept that the father’s reassimilation into his family of origin and a social network of cricket buddies and activities was swift and complete. It is the mother’s social integration and the financial viability of the couple’s future in the United Kingdom that require consideration. If only one half of the couple had ‘set down roots’, that does not equate to the parents and, through them, the young children being assimilated to the extent that it is appropriate to regard them as habitually resident in the United Kingdom for the purpose of the Regulations. [our emphasis] We accept, as also emerged from the judgment in LK (at paragraph 27), that when determining the habitual residence of very young children, as in this case, consideration of the place of habitual residence of “the person or persons upon whom the child is immediately dependent for care and housing” is the sensible course. We acknowledge that in LK their Honours did stress, after acknowledging the appropriateness of that course, that:-...if, as the writings about the Abduction Convention and like instruments repeatedly urge, the question of habitual residence of a child is one of fact, it is important not to elevate the observation that a child looks to others for care and housing to some principle of law… However, their Honours did go on to say (at paragraph 34):-… When parents are living together, young children will have the same habitual residence as their parents. No less importantly, it may be accepted that the general rule is that neither parent can unilaterally change that place of habitual residence. The assent of the other parent (or a court order) would be necessary. … The mother in this case was but one of two parents living together as a couple with whom the two young children lived, and upon whom they were dependent for care and housing at the time immediately before the mother removed them from the UK. Considering what was said in LK, it must be accepted that the two young children in this case had the same habitual residence (if any) as their parents immediately before their mother removed them from the UK. Accordingly, there can be no real differentiation between the search for where the children habitually resided immediately before being removed from the UK and the search for where their parents (albeit for the time being) habitually resided at that time.