State Central Authority & Spring-Ernest (No.2) - [2013] FamCA 906

FAMILY COURT OF AUSTRALIA

STATE CENTRAL AUTHORITY & SPRING-ERNST (NO. 2)

[2013] FamCA 906

FAMILY LAW – CHILD ABDUCTION – HAGUE CONVENTION – wrongful retention – respondent mother agrees that boys aged seven and five years should be returned to the United States – proceedings not able to be finalised because mother has not been able to obtain a visa or entitlement to enter the United States and remain there for the duration of custody and relocation proceedings – humanitarian parole is sole remaining option – delay whilst application for humanitarian parole is processed.

FAMILY LAW – CHILD ABDUCTION – HAGUE CONVENTION – if mother cannot accompany the children back to the United States through no fault of her own she reserves right to oppose mandatory return and to assert that return of children will expose boys to grave risk of harm or otherwise place them in an intolerable situation.

FAMILY LAW – CHILD ABDUCTION – HAGUE CONVENTION – mediation – role of independent children’s lawyer.

FAMILY LAW – CHILD ABDUCTION – HAGUE CONVENTION – International Hague Network of Judges – direct judicial communication.

FAMILY LAW – CHILD ABDUCTION – 1996 Hague Convention on the Protection of Children – curtailment of this court’s jurisdiction to make orders about children who are not habitually resident in Australia – different jurisdictional facts of which to be satisfied before parenting orders can be made depending on whether child is habitually resident in a Convention country or a non-Convention country – USA is a non-Convention country.

FAMILY LAW – CHILDREN – best interests of children the paramount consideration – proposed orders are in best interests of children.

APPLICANT:

State Central Authority

RESPONDENT:

Ms Spring-Ernst

INDEPENDENT CHILDREN’S LAWYER:

Ms C Smith

REQUESTING PARENT / FATHER:

Mr Ernst

FILE NUMBER:

MLC

3927

2013

DATE DELIVERED:

19 November 2013

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Bennett J

HEARING DATE:

November 18 and 19 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms T Porrit

SOLICITOR FOR THE APPLICANT:

Department of Human Services, Legal Services Branch

COUNSEL FOR THE RESPONDENT:

Mr D Werner

SOLICITOR FOR THE RESPONDENT:

Berger Kordos Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms D Harris

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Victoria Legal Aid

SOLICITOR FOR THE REQUESTING PARENT / FATHER MR ERNST:

Kennedy Partners

Orders

BY CONSENT IT IS ORDERED THAT:

On or before 20 January 2014 J Spring-Ernst (born … 2006) and F Spring-Ernst (born …2008) (“the children”) return to the United States of America accompanied by the respondent (“the mother”).

If mother is able to obtain relevant authorisation to enter the United States of America before 20 January 2014

The mother book and pay for return airline tickets for herself and the children to return to the United States of America not more than 31 days after she receives notice of her permission to enter the United States of America, but on a date not before 6 January 2014.
The Father reimburse the mother for one half of 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 & Spring-Ernest (No.2)

Details

AGLC: State Central Authority & Spring-Ernest (No.2) [2013] FamCA 906
Case: [2013] FamCA 906
Decision Date

CaseChat Overview and Summary

The Family Court of Australia, presided over by Justice Bennett, considered the case of the State Central Authority and Ms Spring-Ernst, concerning the wrongful retention of two young boys, aged seven and five, in Australia. The dispute arose under the Hague Convention on the Civil Aspects of International Child Abduction, with the respondent mother agreeing to the children's return to the United States. However, the finalisation of proceedings was hindered by the mother's inability to secure a visa or entitlement to enter and remain in the United States for the duration of custody and relocation proceedings, with humanitarian parole being her sole remaining option.

The court was required to determine the terms of the children's return to the United States, particularly in light of the mother's visa difficulties. Key issues included the conditions for the mother's travel with the children, the process for her application for entry authorisation into the United States, and the interim care arrangements for the children both before and after their return. The court also had to consider the role of the independent children's lawyer and the communication between the parties and relevant international judicial networks.

Justice Bennett applied the paramount consideration of the children's best interests in crafting the orders. The court's reasoning acknowledged the mother's agreement to return the children but recognised the practical impediment of her inability to accompany them without appropriate authorisation. The orders detailed a strict timeline for the mother's efforts to obtain humanitarian parole or other entry authorisation, with specific reporting obligations to the State Central Authority and the independent children's lawyer. The father was ordered to reimburse half the cost of the children's return flights, and both parents were directed to cooperate in retrieving and holding the children's passports. Interim parenting arrangements were also set out, including specific time with the father in Australia and proposed arrangements upon return to the United States, pending determination by the competent US court. The court also ordered the parties to request the Washington Court to make orders reflecting these interim arrangements.

Orders