Tarritt & Director-General, Department of Community Services

Case [2008] FamCAFC 34

FAMILY COURT OF AUSTRALIA

TARRITT & DIRECTOR-GENERAL,
DEPARTMENT OF COMMUNITY SERVICES 		[2008] FamCAFC 34

FAMILY LAW - APPEAL – HAGUE CONVENTION – Whether the trial judge erred in making orders for the return of the child to Iowa - Child’s objections – Regulation 16(3)(c) - Whether the trial judge erred in finding that the child’s objections did not show a strength of feeling beyond the mere expression of a preference or of ordinary wishes - Whether the trial judge erred in failing to find that there is a grave risk that the return of the child would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation

FAMILY LAW – EVIDENCE - FURTHER EVIDENCE ON APPEAL – Family report in relation to child’s objections

FAMILY LAW - APPEAL – allowed. Re-exercise of discretion based on further evidence of child’s objections

FAMILY LAW - COSTS – no order as to costs

Family Law Act 1975 (Cth)
Family Law (Child Abduction Convention) Regulations 1986 – Regulation 16(1A), 16(3)(b), 16(3)(c), and 29(5)

De L v Director-General of Community Services and Anor (1996) FLC 92-706
DP v Commonwealth Central Authority; JLM v Director-General, NSW Department of Community Services (2001) FLC 93-081
In Re F (Hague Convention: Child’s Objections) (2006) FLC 93-277
In Re M (FC) & Anor (FC) (Children) (FC) [2007] UKHL 55
S v S (Child Abduction) (Child’s Views) [1992] 2 FLR 492
APPELLANT: Ms Tarritt
RESPONDENT: Director-General, Department of Community Services for New South Wales
FILE NUMBER: SYC 6193 of 2007
APPEAL NUMBER: EA 141 of 2007
DATE DELIVERED: 27 March 2008
PLACE DELIVERED:

Brisbane
JUDGMENT OF: Bryant CJ, Finn and May JJ
HEARING DATE: 5 February 2008
LOWER COURT JURISDICTION: Family Court of Australia
LOWER COURT JUDGMENT DATE: 20 November 2007
LOWER COURT MNC: [2007] FamCA 1400

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Anderson
SOLICITOR FOR THE APPELLANT: Caldecott & Williams Solicitors
COUNSEL FOR THE RESPONDENT: Mr Tockar
SOLICITOR FOR THE RESPONDENT: Department of Community Services

Orders

  1. That the appeal be allowed.

  2. That the orders made by the Honourable Justice Cronin on 20 November 2007 be discharged.

  3. That the application of the Central Authority for the return of the child is dismissed.

  4. That there be no order as to costs.

IT IS NOTED that publication of this judgment under the pseudonym Tarritt & Director-General, Department of Community Services is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 141 of 2007
File Number: SYC 6193 of 2007

Ms Tarritt

Appellant

And

Director-General, Department of Community Services for New South Wales

Respondent

REASONS FOR JUDGMENT

BRYANT CJ & MAY J

Introduction

  1. This is an appeal by the mother against orders made by Cronin J on 20 November 2007 requiring the return of an 11 year old girl to Iowa in the United States of America.

  2. The orders were made pursuant to the Family Law (Child Abduction Convention) Regulations1986 (Cth) (“the Regulations”) and…

Details
AGLC
Tarritt & Director-General, Department of Community Services [2008] FamCAFC 34
Case
[2008] FamCAFC 34
Decision Date

CaseChat Overview and Summary

The appeal before the Family Court of Australia involved Tarritt and the Director-General of the Department of Community Services. The case centred around a dispute concerning the return of a child to Iowa under the Hague Convention on the Civil Aspects of International Child Abduction. The trial judge had previously ordered the return of the child, a decision that was now under review. The central issues were whether the trial judge had erred in making the return orders and in assessing the objections of the child, and whether there was a grave risk that the return would expose the child to harm.

The court was tasked with determining if the trial judge had erred in concluding that the child’s objections did not demonstrate a strength of feeling beyond a mere expression of preference. The appeal also questioned whether the trial judge had failed to adequately consider the possibility that returning the child could place them in an intolerable situation or expose them to physical or psychological harm. Additionally, the court examined whether the trial judge had erred in not taking into account a family report that was presented after the original decision was made.

The Family Court of Australia found that the appeal should be allowed. The court re-exercised its discretion, taking into account the further evidence provided in the family report regarding the child's objections. It was determined that the trial judge had erred in not adequately considering the child’s objections and the potential for harm. Consequently, the orders made by the trial judge were discharged, the application for the return of the child was dismissed, and there was no order as to costs.

Orders

Orders of the court

1.

That the appeal be allowed.

2.

That the orders made by the Honourable Justice Cronin on 20 November 2007 be discharged.

3.

That the application of the Central Authority for the return of the child is dismissed.

4.

That there be no order as to costs.

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.