The Court of Appeal upheld the trial judge's decision to allow the child to stay in Australia.

In the matter of Director-General, Department of Communities (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 six months. The child was two years of age at the time.

At the invitation 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 about 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”) applied 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 the habitual residence was found to be the USA, the father had consented or acquiesced to the child staying in Australia.

Appeal 

The Central Authority appealed on six 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, among other things:
  • 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 under 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

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Alan Weiss - Aussie Divorce

2nd April, 2020

Alan Weiss developed aussiedivorce.com.au after he experienced himself how devastating divorce proceedings can be. I witnessed firsthand my own future security, and that of my familys, being destroyed by acrimonious and costly divorce litigation. I created aussiedivorce.com.au to help people avoid an experience like this and lose thousands of dollars. Instead the aussiedivorce.com.au system will assist them in getting on with their lives.