State Central Authority & Castillo

[2015] FamCA 792

FAMILY COURT OF AUSTRALIA

STATE CENTRAL AUTHORITY & CASTILLO [2015] FamCA 792

FAMILY LAW – CHILD ABDUCTION — 1980 Hague Convention — alleged wrongful retention of children — habitual residence — application made more than one year after alleged wrongful retention — question of whether the children are settled in Australia —exceptions to return — grave risk — child’s objections to return — is there a residual discretion to return children when they have been found to be settled?

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

APPLICANT: State Central Authority

RESPONDENT: Mr Castillo

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

FILE NUMBER: MLC 7561 of 2014

DATE DELIVERED: 10 September 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE:

LAST SUBMISSION:

12 and 23 February,  13 and 18 March 2015

30 April 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Porritt

SOLICITOR FOR THE APPLICANT: Department of Human Services, Legal Services Branch

COUNSEL FOR THE RESPONDENT: Ms Renwick

SOLICITOR FOR THE RESPONDENT: Eugene Naidoo & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Harris

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

Orders (as amended 15 September 2015)

IT IS ORDERED THAT:

1.The application of the State Central Authority filed on 27 August 2014 be and is hereby dismissed.

2.My reasons for decision this day will be published subsequently.

3.Any appeal in this matter to be filed within 30 days of the publication of my reasons for decision to the parties.

4.The request for the appointment of the independent children’s lawyer be discharged.

IT IS REQUESTED:

5.That the Manager of Child Dispute Services of this Registry of the Court arrange for the family consultant, Ms G, to explain the Orders to the children L, male, born … 2001, B, female, born … 2005 and Y, male, born … 2008 on a date and time to be fixed.

IT IS FURTHER REQUESTED:

6.That the Australian Federal Police remove the names of the children L, male, born … 2001, B, female, born … 2005 and Y, male, born … 2008 from the Airport Watch List at all points of international arrivals and departures in Australia.

IT IS DIRECTED:

7.That this Order be sent electronically to the Australian Federal Police by this Registry of the Court.

AND IT IS NOTED that Ms Renwick of Counsel who appeared at the trial for the respondent father and Ms Smith, the independent children’s lawyer, attended at Court this day although the parties had been excused from attendance.

IT IS NOTED that publication of this judgment by this Court under the pseudonym State Central Authority & Castillo 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 MELBOURNE

FILE NUMBER: MLC 821 of 2008

State Central Authority

Applicant

And

Mr Castillo

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application by the State Central Authority (“SCA”) filed on 27 August 2014 seeking the return to New Zealand…