Legal Updates

Decisions made in the courts in Australia provide an insight into how international aspects of family law are being determined.

This page provides information on recently decided cases in relation to children’s issues and property.

Department of Communities, Child Safety and Disability Services & Garning (discharge application) [2012] FamCA 839

On 3 October 2012, Justice Forrest of the Family Court handed down his judgment in this matter, ultimately returning four children to Italy under the provisions of the Hague Convention, following an unsuccessful application by the children’s mother to discharge the return order.

Justice Forrest originally made a return order for the children in June 2011, however the order was stayed pending determination of the mother’s appeal against this decision. The Full Court of the Family Court dismissed the mother’s appeal, following which the mother filed an application for special leave to the High Court to appeal the Full Court’s decision. A further stay of the return order was granted, pending determination of the mother’s application for special leave to the High Court. This application was later withdrawn by the mother.

Following this, the mother made an application for discharge of the return order. The maternal great-aunt also applied to intervene in the proceedings as the children’s litigation guardian, but this was refused on the basis that the maternal great-aunt did not have standing to intervene.

The maternal great aunt then made an unsuccessful application to the High Court for prerogative relief and argued the constitutional invalidity of specific provisions of the Family Law Act dealing with return orders. Following this, an application for discharge of the return order was made by the mother, and a stay of the return order was granted, pending the outcome of that decision. Ultimately, the application was dismissed and the children were returned to Italy.

Justice Forrest noted the long and complex history of the matter, but ultimately determined that it was not impracticable for the return order to be carried out and he remained unconvinced that the four children would not board a plane to Italy. Further, Justice Forrest determined that there were not exceptional circumstances in place that justified the discharge of the return order, and considered that the girls’ opinions on their return to Italy, and the change in their beliefs during the time they remained in Australia since the original return order was made, were not of significant strength to justify the return order being discharged.

As part of his order, Justice Forrest obtained an undertaking from the father that he would withdraw any criminal complaint he had made against the mother regarding the removal of the children from Italy, which was an impediment that the mother raised to returning to Italy with the children.

Finally, Justice Forrest opined that even if the discretion as to whether or not to return the children was enlivened under the relevant provisions of the legislation, he would have refused to exercise the discretion to discharge the return order as, among other things, he considered that it was important that the underlying spirit of the Hague Convention was upheld.

Read a copy of the judgment .

American child to stay in Australia

In the matter of Director-General, Department of Communitiies (Child Safety Services) & Rolfston, the Court of Appeal upheld the trial judge's decision to allow the child of the marriage to stay in Australia.

With the consent of her father, the only child of the marriage travelled from the USA to Australia with her mother in November 2008 to holiday with the maternal grandmother for a period of 6 months. The child was 2 years of age at the time.

At the invitatin of the mother, the father travelled to Australia in March 2009 for a holiday.  During this holiday, the mother informed the father that the marriage was at an end and she would not be travelling back to the USA.   Before the father left Australia (later that month), the parents contacted the Child Support Agency ("CSA") to obtain a child support assessment and the child was enrolled in and commenced at a Brisbane based infant school.

Between March 2009 and June 2009, the parents communicated by email in relation to the parenting arrangements for the child and engaged a mediator who prepared a Parenting Agreement ("the Agreement").  The father asserted that he wanted to reconcile with the mother and this is one of the major reasons for his participation in the mediation.

Both parties subsequently signed the Agreement and the mother then sought to ratify the Agreement in the Family Court of New York.  The father opposed the ratification of the Agreement and filed an application in the Family Court of New York seeking orders for “custody and residence” of the child. The father’s application was dismissed.  On 19 November 2009, the Director-General, Department of Communities (Child Safety Services), acting as the State Central Authority for Queensland (“the Central Authority”) filed an application in Australia seeking the return of the child to the USA. The Central Authority asserted that the child had been wrongfully retained in Australia by her mother.

His Honour Justice Murphy dismissed the application on the basis that the Central Authority had not discharged the onus of establishing the child was habitually resident in the USA.  The mother argued that even if habitual residence was found to be the USA, the father had consented or aquiesced to the child staying in Australia.
The Central Authority appealed on 6 grounds, one which included that Murphy J had erred in finding that the child’s place of habitual residence at all relevant times was Australia.
The Full Court consisting of May, O'Ryan and Strickland JJ, delivered judgment on 19 August 2010, dismissing the appeal.
The Full Court found, inter alia:
-          that Murphy J did not err in finding that the child was not habitually resident in the USA on 30 June 2009;
-          Murphy J did not “put the cart before the horse” in determining habitual residence first. Murphy J rightly considered the issue of wrongful retention (habitual residence), and then would have if necessary, considered consent or acquiescence pursuant to regulation 16(3). Of course it was not necessary for the trial judge to consider the later given his finding on habitual residence;
-          “Habitual residence and acquiescence in regulation 16(3) are distinct concepts. The onus of establishing the child’s habitual residence is on the Central Authority…and the onus of establishing that a parent has acquiesced to the child’s removal or retention would be on the respondent”
-          the most significant piece of evidence of the parties’ intentions was the parenting agreement;
-          the child lost her habitual place of residence through the parents signing the parenting agreement

The Full Court held there was no merit in any of the grounds of appeal. The full judgement can be read here.

Israeli children to stay in Australia

In the matter of LK v Director-General, Department of Community Services the High Court of Australia has allowed an appeal by the mother of 4 children born in Israel against orders requiring her to return the children to Israel.

The mother and father lived in Israel where the children were born. The children were entitled to Australian citizenship through their mother. The parties separated in 2005 with the children remaining in the mother’s care in Israel. In 2006 the mother and the children came to Australia with the consent of the father. The parties agreed that should they reconcile the mother and the children would return to Israel. Before leaving Israel, and on her arrival in Australia, the mother took steps to establish a permanent home for the children in Australia. Two months after the children arrived in Australia the Father sought their return, and stated that he wanted a divorce.

The Full Court of the Family Court had found that the children were habitual residents of Israel and so ordered that they be returned to Israel. The High Court however found that the children were not habitual residents of Israel and that the deciding factor was that the parents had agreed, prior to the children departing Israel, that the children would stay in Australia unless there was a reconciliation. The full judgment can be read here.


American children to return to the States

In the matter of Department of Community Services & Sharmain the mother’s appeal against an order to return the child to the United States was unsuccessful. The mother argued that a court in the United States did not have jurisdiction to enforce the father’s rights of custody, because the child had not been resident in Colorado for a period of six months.

The Full Court of the Family Court found that a court in the United States did have jurisdiction to determine the proceedings for custody should the child be returned and accordingly the appeal was unsuccessful. The judgment of the Family Court of Australia can be read here.


Australian property and Italian Law

Recently, the Full Court of the Family Court of Australia in Pagliotti & Hartner (2009) FLC 93-393 dismissed an application for an Australian property to be determined under Italian law.
The wife was 73 years of age at the date of the Family Court’s Judgment. The husband was then aged 64 years. The parties married in 1972 in Australia and separated in 2002 in Rome. There were no children of the marriage. After their separation, the parties were engaged in extensive litigation in Italian courts. That litigation began in 2003.

There was a property in Australia which was the subject of the proceedings before the Judge in the Family Court of Australia. This property was in the sole name of the wife who occupied the property after returning to Sydney in September 2004 (after separation).

On 6 April 2006 the husband lodged a caveat against the title to the property claiming "an equitable interest of the caveator arising out of financial and non-financial contributions to the maintenance of the property".

By agreement between the husband and the wife, and after the proceedings were started in Australia, the property was sold. From proceeds of sale, the wife then purchased another property.

The wife was seeking orders for a property settlement in Australia and the husband was seeking orders that this application be permanently stayed and further, that a declaration be made declaring that the second property purchased by the wife was held by her on trust for him.

The Family Court Judge made orders dismissing the husband’s application to stay the wife’s property settlement applicant.

The husband then appealed to the Full Court of the Family Court.

The Full Court held that Australia is not an inappropriate forum to determine the parties’ entitlements to the property in Australia, but the Family Court would, in fact, be an inappropriate forum to determine the parties’ maintenance rights and Italian assets.

The Court held that the Italian courts lacked jurisdiction to determine the beneficial ownership of the Australian property or the proceeds of its sale. The matter was not dealt with in the Italian proceedings as the Roman Tribunal were without jurisdiction.

The Court commented that the Roman Tribunal clearly anticipated that the husband’s pending application in the Family Court of Australia would determine those entitlements. The ability of either party to re-agitate the maintenance issue in Italy once their entitlements to the property are determined in accordance with Australian law reveals the harmonious coalition between the Italian and Australian laws.

In summary, if the husband and the wife own property in Australia and live overseas (being Italy in this case), then only the Family Court of Australia has jurisdiction to make orders in relation to that property in property settlement proceedings.

To find out more, please contact our Family Law team.