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State Central Authority & Perkis

State Central Authority & Perkis

Case [2010] FamCA 649 23 June 2010

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FAMILY COURT OF AUSTRALIA

STATE CENTRAL AUTHORITY & PERKIS

[2010] FamCA 649

FAMILY LAW – CHILD ABDUCTION – HAGUE CONVENTION – very young parents - habitual residence of young baby

FAMILY LAW – CHILD ABDUCTION – HAGUE CONVENTION – grave risk of harm arising out of mental health problems of mother and effect of her capacity to care for child

FAMILY LAW – CHILD ABDUCTION – HAGUE CONVENTION – consideration of whether delayed return would ameliorate grave risk to point that it was tolerable – application dismissed

Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) s 100B
Family Law (Child Abduction Convention) Regulations 1986 (Cth) reg.16

Department of Child Safety & Bates [2007] FamCA 570
DP v Central Authority; JLM v Director-General, NSW Department of Community Services (2001) 206 CLR 401
Re: H & Ors (1996) 1 All ER 1
DW and Director General Department of Child Safety [2006] FamCA 93
Re B (Minor) [1993] 1 FLR 993
LK and Director-General, Department of Community Services (2009) 253 ALR 202
SCA v Wattey [2008] FamCA 1108
Re F (A Minor) (Child Abduction) (1992) 1 FLR 548
Cooper v Casey (1995) FLC 92-575
VP v A [Child Abduction] [2005] NZFLR 817
C v C [1989] 2 All ER 465
Armstrong v Evans [2000] NZFLR 984
Re C (A Minor)(Abduction) [1989] 2 All ER 465
The Director General, Department of Families, Youth and Community Care and B [2000] FamCA 253
Re G(Abduction: Psychological Harm) [1995] 1 FLR 64
Director-General, Department of Human Services and RSP [2003] FamCA 623
State Central Authority and DB [2002] FamCA 804
HZ v State Central Authority [2006] FamCA 466
S v S [1999] 3 NZLR 513

APPLICANT:

State Central Authority (Victoria)

RESPONDENT:

Ms Perkis

FILE NUMBER:

MLC

3538

2010

DATE DELIVERED:

23 June 2010

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

The Hon. Justice Bennett

HEARING DATES:

3 and 4 June 2010 and written submissions on 16 June 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms J Greenham

SOLICITOR FOR THE APPLICANT:

Department of Human Services, State Central Authority

COUNSEL FOR THE RESPONDENT:

Ms B Phelan

SOLICITOR FOR THE RESPONDENT:

Victoria Legal Aid, Morwell

Orders

IT IS ORDERED:

That the application filed by the State Central Authority on 20 April 2010 be dismissed.
That the Orders made on 23 April 2010 be discharged.
That these proceedings are removed from the active pending cases list.
That all documents produced on subpoena be returned to the person or entity who produced same.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 3538 of 2010

STATE CENTRAL AUTHORITY

Applicant

And

MS PERKIS

Respondent

REASONS FOR JUDGMENT

Introduction

Before me is an Application filed 20 April 2010 by the State Central Authority of New Zealand under the Family Law (Child Abduction Convention) Regulations 1986 (“the Convention”).
The…

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 & Perkis

Details

AGLC: State Central Authority & Perkis [2010] FamCA 649
Case: [2010] FamCA 649
Decision Date: 23 June 2010

CaseChat Overview and Summary

The State Central Authority, acting on behalf of Perkis, sought the return of a young child under the Hague Convention. The application was heard by Justice Bennett.

The central legal issues before the court were whether the child had been habitually resident in a contracting state and, if so, whether there was a grave risk of harm to the child arising from the mother's mental health issues and her capacity to care for the child. The court was also required to consider whether any such grave risk could be ameliorated to a tolerable level by a delayed return.

Justice Bennett's reasoning focused on the specific circumstances of the case, particularly the very young age of the child and the parents. The court considered the evidence regarding the mother's mental health and its potential impact on her ability to provide adequate care. Ultimately, the court determined that the threshold for a grave risk of harm was not met to the extent that it would warrant an order for the child's return under the Convention, nor was a delayed return considered to ameliorate any identified risk to a tolerable degree.

Consequently, the application filed by the State Central Authority was dismissed, and the previously made orders were discharged. The proceedings were removed from the active pending cases list, and all subpoenaed documents were ordered to be returned.

Orders

Orders of the court

IT IS ORDERED:

That the application filed by the State Central Authority on 20 April 2010 be dismissed.

That the Orders made on 23 April 2010 be discharged.

That these proceedings are removed from the active pending cases list.

That all documents produced on subpoena be returned to the person or entity who produced same.

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

Full text does not contain this section.

Citations

AGLC Citation

State Central Authority & Perkis [2010] FamCA 649

Most Recent Citation

Harries v Harries [2011] FamCAFC 113

Cases citing this decision · 5 of 5 shown

Department of Family and Community Services and Watkins
[2017] FamCA 197 Para 5

…ild’s habitual residence because it would thwart the aim and purpose of the Convention and the Regulations (citing State Central Authority & Perkis [2010] FamCA 649 at [174] and the observations of Kent J in Director-General, Department of Communities, Child Safety and Disability Services & Delany (No. 2) [2015] Fa…
State Central Authority and Koehler
[2014] FamCA 351 Para 2

…The first of the cases I was referred to by counsel for the mother was State Central Authority & Perkis [2010] FamCA 649. In this case, Bennett J, referring to the earlier cases of Director-General, Department of Families, Youth and Community Care and Bennett (2000) FLC 93-011 and Re G (Abduction: Psychological har…
Harries v Harries
[2011] FamCAFC 113 Para 1

…Re G (Abduction: Psychological Harm) [1995] 1 FLR 64 (“ Re G ”) and the first instance decision of Bennett J in State Central Authority v Perkis [2010] FamCA 649, the facts in each of which had some similarity to those in the present case.…
Director-General, Department of Human Services & Harries
[2010] FamCA 1129 Para 19

…In the decision of State Central Authority v Perkis [2010] FamCA 649 Bennett J reviewed the authorities relating to the exercise of discretion as follows: Turning to the exercise of the discretion, Kay J in State Central Authority and DB [2002] FamCA 804, His Honour, in my view, correctly summarised the relevant la…
State Central Authority and Henfold
[2010] FamCA 1172 Para 2

…lt to ascertain in some cases (see, for example, Secretary of the Attorney-General & Stamatelos [2008] FamCA 1117; State Central Authority & Perkis [2010] FamCA 649). The circumstances of this particular case were somewhat unusual in that if it were the case that the child’s habitual residence had to be related to…

View all 5 citing cases →

Cases cited in this decision · 14 of 14 shown

LK v Director-General, Department of Community Services
[2009] HCA 9 Para 4

…ect the significance to be attached to particular circumstances, such as the duration of a person’s connections with a place of residence. [23] [2009] HCA 9 (11 March 2009).…
State Central Authority and Wattey
[2008] FamCA 1108 Para 9

…gument, we should not strain to find a lack of habitual residence, where on a broad canvas, the child has settled in a particular country. [30] [2008] FamCA 1108 [31] Supra [32] Ibid pp [113] to [115]…
State Central Authority and Daker
[2008] FamCA 1271 Para 3

…on a return order which encroach on matters which are properly the province of the contracting state of habitual residence (see SCA v Daker [2008] FamCA 1271 at [70] to[87]). In the circumstances, I would favour a lump sum payment accompanied by details of what it was intended to cover but then left to the returning…
Department of Child Safety & Bates
[2007] FamCA 570

…Department of Child Safety & Bates [2007] FamCA 570 DP v Central Authority; JLM v Director-General, NSW Department of Community Services (2001) 206 CLR 401 Re: H & Ors (1996) 1 All ER 1 DW and Director General Department of Child Safety [2006] FamCA 93 Re B (Minor) [1993] 1 FLR 993 LK and Director-General, Departme…
HZ & State Central Authority
[2006] FamCA 466 Para 1

…In HZ v State Central Authority [2006] FamCA 466, the Full Court comprising Kay, Coleman and Warnick JJ endorsed the above passage by Kay J in State Central Authority and DB as being the appropriate approach to be taken on the issue of the exercise of discretion to refuse to return a child to its country of habitua…
DW & Director-General, Department of Child Safety
[2006] FamCA 93 Para 2

…may not have had a specific discussion and/or reached a clear agreement regarding their future living arrangements. [21] [2006] FamCA 93 [22] [1993] 1 FLR 993…
Director-General, Department of Families & RSP
[2003] FamCA 623 Para 11

…d that this gives rise to a grave risk of harm to her, or places her in an intolerable situation. The mother may well follow her to the USA. [55] [2003] FamCA 623; (2003) FLC 93-152…
DP v Commonwealth Central Authority
[2001] HCA 39 Para 2

…e person opposing return, of fears for the child may well not be sufficient to persuade the court that there is a real risk of exposure to harm. [13] (2001) 206 CLR 401; (2001) FLC 93-081…
Director-General, Department of Families, Youth and Community Care v Bennett
[2000] FamCA 253 Para 5

…with it a likelihood that she might become psychotic, and that such a serious deterioration in her health would adversely affect the children. [50] [2000] FamCA 253; (2000) FLC 93-011; 26 FamLR 71…
De L v Director-General, NSW Department of Community Services
[1996] HCA 5 Para 2

…iscretion may be exercised. Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ said in De L v Director-General, NSW Dept of Community Services (1996) 187 CLR 640; FLC 92-706; 20 Fam LR 390 at CLR 661; FLC 83,456; Fam LR 403: “if a child objects to being returned to the country of his or her habitual residence…
Water Conservation and Irrigation Commission (NSW) v Browning
[1947] HCA 21 Para 2

…egulations]’ enable it to be said that a particular consideration is extraneous [ Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 505 per Dixon J]. That subject-matter is such that the welfare of the child is properly to be taken into consideration in exercising that discretion.” I…
State Central Authority v DB
[2002] FAMCA 804 Para 2

…Turning to the exercise of the discretion, Kay J in State Central Authority and DB [2002] FamCA 804, His Honour, in my view, correctly summarised the relevant law in relation to the exercise of the discretion to refuse an order for return as follows:- 33.The existence of the Regulation 16(3) defence means that the…
[1990] 2 AC 562
[1990] 2 AC 562 Para 3

…ve rights of care of a child (as in this case) the habitual residence may only be changed by agreement, acquiescence or court order: Re J (a Minor) [1990] 2 AC 562.…
[1999] 3 NZLR 513
[1999] 3 NZLR 513 Para 3

…I am mindful, however, of the significance of the 1980 Convention to children generally. As Fisher J said in S v S [1999] 3 NZLR 513 at p519:- Underlying the presumption of return is the Convention premise that the interests of the children are of paramount importance. In giving effect to that premise it will usuall…

Legislation cited in this decision · 3

Evidence Act 1995 (Cth)
140 2 mentions (from Para 4)
Family Law (Child Abduction Convention) Regulations 1986 (Cth)
16 2 mentions (from Para 1)
Family Law Act 1975 (Cth)
100B 2 mentions