State Central Authority & Handbury - [2020] FamCA 268

FAMILY COURT OF AUSTRALIA

STATE CENTRAL AUTHORITY & HANDBURY AND ANOR

[2020] FamCA 268

FAMILY LAW – CHILD ABDUCTION – where order for child to return to the United Kingdom is confirmed on appeal – where respondent seeks to retain child in Australia whilst participating in proceedings in England to permit relocation of child to Australia – where application is refused.

Convention of 25 October 1980 on the Civil Aspects of International Child Abduction
Family Law (Child Abduction Convention) Regulations 1986 (Cth)

State Central Authority & Handbury [2019] FamCA 668

APPLICANT:

State Central Authority

RESPONDENT:

Ms Handbury

REQUESTING PARENT:

Mr Handbury

INDEPENDENT CHILDREN’S LAWYER:

Ms Smith

FILE NUMBER:

MLC

122

2019

DATE DELIVERED:

10 February 2020

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Bennett J

HEARING DATE:

10 February 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Greenham

SOLICITOR FOR THE APPLICANT:

Department Of Health & Human Services, Legal Services Branch

COUNSEL FOR THE RESPONDENT:

Mr Serra

SOLICTOR FOR THE RESPONDENT:

KHQ Lawyers

COUNSEL FOR THE REQUESTING PARENT:

Ms Hannan

SOLICITOR FOR THE REQUESTING PARENT:

Burke Family Law

COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER:

Not Applicable

SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER:

Victoria Legal Aid

Orders – as amended on 27 February 2020

The Order made on 27 August 2019 as varied by the Order made on 13 September 2019 remain in full force and effect save that:-
(a) Paragraph 6 of the Order made on 27 August 2019 be varied so that the dates that the father accompanies the child Z born … 2013 (“the child” “Z”) back to the United Kingdom is between 17 And 18 February 2020;
(b)       Paragraph 6(b) of the Order made on 27 August 2019 be varied so that the date that the father provide a copy of the tickets for him and the child and details of the itinerary to the State Central Authority, the mother and the Independent Children’s Lawyer be by 5.00 pm on 13 February 2020;
(c)       Paragraph 7 of the Order made 27 August 2019 be varied so that the date that the mother reimburse the father for half of the cost of the child’s flight is 14 February 2020;
(d)       Paragraph 15 of the Order made on 27 august 2019 as varied by paragraph 1 of the Order made on 13 September 2019 be varied so that it reads:
“Upon the return to the United Kingdom and until orders are made by a court in the United Kingdom:
i)        The child live in City D with the mother and the father as follows:
(1)For the first three weeks of an 8 week rotating cycle, commencing upon the child’s return to the UK from 19 February 2020 as follows:-
a)with the father for the first 3 nights and each week thereafter;
b)with the mother, for the remaining 4 nights and each week thereafter;
(2)For the fourth week of an 8 week rotating cycle, for 7 nights with the father;
(3)For the fifth week of an 8 week…

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 & Handbury

Details

AGLC: State Central Authority & Handbury [2020] FamCA 268
Case: [2020] FamCA 268
Decision Date: 10 February 2020

CaseChat Overview and Summary

The parties before the court were the State Central Authority, acting on behalf of the father, and the mother. The dispute concerned the mother's application to retain her child, Z, in Australia following a prior return order made under the Family Law (Child Abduction Convention) Regulations 1986 (Cth). This application was brought after the mother's appeal against the return order was dismissed by the appeal division of the Family Court of Australia.

The court was required to determine whether to grant the mother's application, which sought, on an interim basis, to allow Z to remain in Australia while the mother prosecuted her relocation application in the United Kingdom. The mother also sought that social science evidence be obtained from a private report writer in Melbourne, rather than through Cafcass in the United Kingdom, which would necessitate Z's return to England. The applicant State Central Authority and the father opposed the mother's application.

Bennett J dismissed the mother's application. The court reasoned that granting the application would subvert the intention of the 1980 Convention on the Civil Aspects of International Child Abduction by potentially leading to further delays. The mother's previous attempts to retain Z in Australia had been unsuccessful, with a return order being made and subsequently upheld on appeal. The current application was seen as a further attempt to delay the inevitable return of the child to England. The Independent Children's Lawyer took a neutral stance on the matter.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

My reasons for decision this day be transcribed and when settled placed on the Court file and a copy provided to the parties. Otherwise the Application in a Case of the wife filed 31 January 2020 and the Response thereto of the husband filed 7 February 2020 be and are hereby dismissed. This matter comes before me on the mother’s application filed following the dismissal by the appeal division of this Court of the mother’s appeal against the return order made under the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”). My reasons for decision on the return application are published under case neutral citation [2019] FamCA 668. In short compass, Z, who was born in 2013 and is, therefore, nearly seven years old, came to Australia with her parents in October 2017. I was satisfied that the parents came to Australia with the intention of returning to England at the expiration of two years. By February 2018, the mother had decided that she would prefer to remain in Australia, and it was alleged and ultimately found by me that she repudiated the previous agreement to return by September 2019. At the behest of the father, Hague proceedings were instituted on 15 February 2019 and, in accordance with our procedures, the application was prosecuted by the State Central Authority. The matter was finally decided by me in August 2019 with a return order being made. I found that all of the threshold matters were satisfied, and that there had been no exception to return made out. The mother appealed that decision and the appeal decision was handed down on 21 January 2020, upholding my original decision. The mother then made application to the Courts in the United Kingdom for, amongst other things, an order permitting her to retain Z in Australia whilst she prosecuted her relocation application in the English Courts. The mother also sought that the social science evidence be obtained from a private family report writer in Melbourne rather than using the Children and Family Court Advisory and Support Service (“Cafcass”) in the United Kingdom. A Cafcass assessment would necessarily require the child to travel back to the United Kingdom. In essence, having failed on appeal, the mother seeks on an interim basis to retain the child in Australia so that she can prosecute her application in the United Kingdom for the child to remain here permanently. The English proceedings filed by the mother are returnable on 20 February 2020. It was originally sought that today’s application not be listed for hearing until after 20 February. However, I have brought the matter on today, which is just after the mother has returned from some employment commitment interstate. Today, counsel for the mother alters the mother’s position slightly by saying that he would be satisfied with a return order for the child, which did not take effect until 24 February. The applicant State Central Authority and the father oppose the mother’s application. Ms Greenham appears for the State Central Authority and says that the mother’s application, if granted, would just lead to a series of delays and the intention of the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (“1980 Convention”) would be subverted. The Independent Children’s Lawyer, Ms Smith, takes the view that Z would be fine either way and did not advance a position about whether or not Z should remain in England or in Australia.

Ratio Decidendi

Legal Principle Established

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