FAMILY COURT OF AUSTRALIA
| STATE CENTRAL AUTHORITY & HANDBURY | [2019] FamCA 668 |
| FAMILY LAW – CHILD ABDUCTION – where child wrongfully retained in Australia – repudiatory retention. FAMILY LAW – CHILD ABDUCTION – habitual residence – where the habitual residence in Australia was acquired prior to date of repudiatory retention. FAMILY LAW – CHILD ABDUCTION – where acquiescence alleged. FAMILY LAW – CHILD ABDUCTION – conditions to return – essential features. FAMILY LAW – CHILD ABDUCTION – consequences of an exception to return being made out (which it was not). FAMILY LAW – CHILD ABDUCTION – where court satisfied that all jurisdictional facts were proven, where no acquiescence was found to have occurred – where child ordered to be returned to the United Kingdom twenty-one months after arriving in Australia. |
| Brussels II Regulation Children Act 1989 (UK) Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children Convention of 25 October 1980 on the Civil Aspects of International Child Abduction Evidence Act 1995 (Cth) Family Law (Child Abduction Convention) Regulations 1986 (Cth) Family Law Act 1975 (Cth) |
| A v A and Another (Children: Habitual Residence) (Reunite International Child Abduction Centre and Others Intervening)[2013] UKSC 60 AR v RN (Habitual Residence) [2015] UKSC 35 Commonwealth Central Authority & Cotter [2016] FamCA 209 De L v Director-General, NSW Dept of Community (1996) 187 CLR 640 Department of Health and Community Services, State Central Authority and Casse [1995] FamCA 71 Director General, Department of Families, Youth & Community Care &Thorpe (1997) FLC 92-785 H v H (Abduction: Acquiescence) [1996] 2 FLR 570 at 574 HZ and SCA [2006] FamCA 446 In re F (A Minor) (Child Abduction) [1992] 1 FLR 548 In re H (Children) [2015] 1 WLR 863 In re J (A Minor) (Abduction: Custody Rights) [1990] 2 AC 562 In re LC (Children) [2014] UKSC 1 In re R (Children) [2015] UKSC 35 In the matter of C (Children) [2018] UKSC 8 In Proceedings Brought by A ((2009) Case C-523/07) LK v Director-General, Department of Community Services [2009] HCA 9 Mercredi v Chaffe ((2010) Case C-497/10 PPU) MW v Director General, Department of Community Services (2008) 244 ALR 205 Re A (Minors)(Abduction: Custody Rights) [1992] Fam. 106 Re AZ (A minor) (Abduction: Acquiescence) [1993] 1 FLR 682 Re B (A Child) (Habitual Residence: Inherent Jurisdiction)[2016] UKSC 4 Re H (Minors) [1998] AC 72 Re M (Abduction: Habitual Residence) [1996] 1 FLR 887 Re M (Minors) [1993] 1 FLR 495 Re S (Minors) (Abduction: Acquiescence) [1994] 1 FLR 819 SCAvSigouras (2007) FamCA 250 TB v JB [2000] EWCA Civ 337 W v W (Child Abduction: Acquiescence) [1993] 2 FLR 211 Wenceslas and Director-General Department of Community Services [2007] FamCA 398 Zotkeiwick & Commissioner of Police(No.2) (2011) FLC 93 – 472 |
| APPLICANT: | State Central Authority |
| RESPONDENT: | Ms Handbury |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Murray |
| FILE NUMBER: | MLC | 122 | of | 2019 |
| DATE DELIVERED: |
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- AGLC
- State Central Authority & Handbury [2019] FamCA 668
- Case
- [2019] FamCA 668
- Decision Date
CaseChat Overview and Summary
The case of *State Central Authority & Handbury* concerned an application before Bennett J in the Federal Circuit Court of Australia. The dispute involved international child protection matters, with the court considering the appropriate orders to be made concerning the welfare of a child.
The central legal issue before the court was the determination of subsidiary matters relating to the child's welfare, particularly concerning travel arrangements and the finalisation of orders, following an earlier hearing. The court was required to decide how to best facilitate agreement between the parties on these details or, failing agreement, how to resolve them.
Bennett J indicated that direct judicial communication could occur in accordance with emerging guidance on international judicial communications, including safeguards for such communications within the context of the International Hague Network of Judges. The judge proposed to provide a draft order and invited the parties, specifically the father, to provide details of flights and other matters they could agree upon. If agreement could not be reached, the parties were to submit minutes of their proposed orders within 24 hours for the court to determine. The possibility of a further VLA Hague mediation was also raised as a potential avenue for resolution. The court ultimately made orders as set out at the commencement of its reasons.
The central legal issue before the court was the determination of subsidiary matters relating to the child's welfare, particularly concerning travel arrangements and the finalisation of orders, following an earlier hearing. The court was required to decide how to best facilitate agreement between the parties on these details or, failing agreement, how to resolve them.
Bennett J indicated that direct judicial communication could occur in accordance with emerging guidance on international judicial communications, including safeguards for such communications within the context of the International Hague Network of Judges. The judge proposed to provide a draft order and invited the parties, specifically the father, to provide details of flights and other matters they could agree upon. If agreement could not be reached, the parties were to submit minutes of their proposed orders within 24 hours for the court to determine. The possibility of a further VLA Hague mediation was also raised as a potential avenue for resolution. The court ultimately made orders as set out at the commencement of its reasons.
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
Additionally, direct judicial communication can be conducted in accordance with Emerging Guidance regarding the development of the International Hague Network of Judges and General Principles for Judicial Communications, including commonly accepted safeguards for Direct Judicial Communications in specific cases, within the context of the International Hague Network of Judges[36]. [36] type="1">I will provide a draft order but look to the parties and father to flesh it out with details of flights and whatever matters the parents can agree upon. If they cannot agree, each should submit a minute of order he/she seeks within 24 hours (or later today) and I will determine those subsidiary matters on the basis of the minutes and brief oral submissions. If the parents think that they would benefit from a further VLA Hague mediation, one can likely be arranged. It may be that there is some scope for discussions now they know the outcome of the hearing.ConclusionFor the above reasons I make the Order set out at the commencement of these reasons.I certify that the preceding two hundred and eighty-seven (287) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 22 August 2019.Associate: Date: 17 September 2019 For the above reasons I make the Order set out at the commencement of these reasons.
Ratio Decidendi
Legal Principle Established
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