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Significant judgments
In the past year, judges of the Family Court of Australia have handed down a series of
judgments at both first instance and appellate levels which reflect the Court’s broad
jurisdiction and the variety of issues the Court faces.
(NOTE: The following headnotes and comment on leading cases were contributed by
CCH Family Law Editors.)
Full Court Judgments
Child abduction — Father residing in USA — Mother and child residing in USA for
short period — Whether mother’s intention of residing with father for purpose
of deciding whether their relationship would ‘work out’ could constitute a
settled intention or purpose — Whether child was habitually resident in the USA
immediately before the child departed the USA
DW v Director General, Department of Child Safety [2006] FamCA 93, (2006)
FLC 93-255, (2006) 34 FamLR 656, 28 February 2006
Part 5
SIGNIFICANT JUDGMENTS
Full Court of the Family Court of Australia before Finn, Holden and May JJ
The mother appealed an order which provided that her very young child be removed
from Australia to the USA where the father resided.
Prior to the child’s birth, the parents resided together in the USA from May 2003 until
February 2004 when the mother returned alone to Australia. The child was born in
Australia in May 2004. In July 2004, the mother returned to the USA with the child and
moved into the father’s home. In October 2004, the mother left the father and went
with the child to a women’s shelter before returning with the child to Australia several
days later.
The trial Judge had found that the mother arrived in the USA with the child intent on
resuming her relationship with the father and seeing how it ‘worked out’, and that
within a few weeks of arrival the mother was residing with the father with the settled
purpose of deciding whether she would persevere with that arrangement in the
long term.
Counsel for the mother submitted that the trial Judge’s findings were not open to him
and even if they were, they could not support his ultimate conclusion that the child was
habitually resident in the USA immediately prior to its departure.
Family Court of Australia Annual Report 2005–2006 57