Department of Child Safety and Downs-Hopman

[2009] FamCA 808

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF CHILD SAFETY & DOWNS-HOPMAN [2009] FamCA 808

FAMILY LAW – CHILD ABDUCTION – Hague Convention – Child wrongfully retained – No material filed by Respondent – Case made out – Orders for return

APPLICANT: Department of Communities (Child Safety Services)

RESPONDENT: Mr Downs-Hopman

FILE NUMBER: BRC 4274 of 2009

DATE DELIVERED: 8 July 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Jordan J

HEARING DATE: 8 July 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr K Parrott

Crown Law, Brisbane

THE RESPONDENT: No appearance

Orders

IT IS ORDERED

1. That the child, … born … September 1997, be returned to the country of New Zealand and for the purposes of giving effect to this order:

   a.That the said child leave the Commonwealth of Australia on or before 8 August 2009;

   b.That pending the said child, … born … September 1997, returning to New Zealand, the respondent father, Mr Downs-Hopman, born … August 1980, continue to be restrained and an injunction is hereby issued, restraining him from removing or attempting to remove the said child from the Commonwealth of Australia;

   c.That pending the return of the said child, … born … September 1997 to New Zealand, the respondent father, Mr Downs-Hopman, born … August 1980, continue to be restrained and an injunction is hereby issued, restraining him from changing the residence of the said child, … born … September 1997, from the premises where the father and the said child are currently residing, namely, …;

   d.That subject to sub-paragraph e. below, the Commissioner of the Australian Federal Police and all Federal Agents of the Australian Federal Police retain the names of the respondent father, Mr Downs-Hopman, born … August 1980, and the said child, … (male) born … September 1997, on the All Ports Watch Alert System at all international departure points in Australia;

   e.That the said child, … (male) born … September 1997, and the respondent father, Mr Downs-Hopman, born … August 1980, be removed from the All Ports Watch Alert System by officers/agents of the Australian Federal Police upon receipt of a letter from an officer of the Court Services, Department of Communities (Child Safety Services) advising of the travel arrangements made for the said child to return to New Zealand, from 12.00 am on the date nominated for the said travel in the letter;

   f.That the Marshal of the Family Court of Australia and the Commissioner and all Federal Agents of the Australian Federal Police and Officers of the Police Forces and Services of the various States and Territories are required and empowered to take all necessary steps to give effect to these orders;

   g.That to facilitate the return of the said child, … born … September 1997, to New Zealand, Ms K, Department of Communities (Child Safety Services), or such person as may be nominated by her, shall be at liberty to release all current passports relating to the child for the purposes of the said child's return to New Zealand, and release the respondent father’s passport to him or his nominee upon request.

   h.That liberty to apply be granted to the applicant to seek any further orders necessary to allow him to make such arrangements as are necessary to facilitate and ensure the return of the said child in accordance with this order.

   i.That paragraphs 1, 2 and 4 of the orders of the Honourable Justice Rose made 21 May 2009 be discharged forthwith.

2. That all other Applications be dismissed.

3. That there be liberty to apply.

IT IS NOTED that publication of this judgment under the pseudonym DCS & Downs-Hopman is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC4274 of 2009

DEPARTMENT OF COMMUNITIES (CHILD SAFETY SERVICES)

Applicant

And

MR DOWNS-HOPMAN

Respondent

REASONS FOR JUDGMENT

ex tempore

1. In this matter, the Central Authority makes an application under the Family Law (Child Abduction Convention) Regulations 1986 for orders for the return of a child born in September 1997.

2. The child is a product of a relationship between Ms M and Mr Downs-Hopman.  The parties were in a relationship between 1994 and 2003 and there are two other younger children of that relationship.  The subject child was born in New Zealand and has resided in New Zealand all of his life until recent times. 

3. In October 2008, the mother secured an order from the New Zealand Family Court which granted to the mother day-to-day care and to the father orders for contact. 

4. The father moved to Brisbane in December 2007 and the subject child and the other children remained with their mother in New Zealand.

5. In 2008, the mother and the father reached an agreement whereby the subject child travelled to Australia to spend some holiday periods with his father.  The agreement between the parties was that he would travel to Australia in early December and return to New Zealand in the last week of January to resume his schooling.  On 29 January, the mother was informed by an intermediary aunt that the father would not be returning the child to New Zealand and the father has not returned the child to this time. 

6. I have read the material provided by the applicant.  The father has appeared previously.  However, on the occasion before this when the matter was before the Court, he failed to appear, although it may be that he was in transit at the time of the hearing.  The father has failed to appear today and he has failed to file any affidavit material at any time in these proceedings.  The only evidence before me is that produced by the Central Authority.

7. On the material produced, I am satisfied that it has been established that the habitual residence of the subject child as at 29 January 2009 was New Zealand.  I am satisfied that New Zealand is a convention country and I am satisfied that the requesting applicant, the mother, possesses rights of custody.  I am further satisfied that the retention of the child in Australia by the father on 29  January 2009 breached the mother's rights of custody in relation to the child which she was exercising, or would have exercised but for the retention.

8. On previous mentions, the prospect that the child might object to being returned to New Zealand and thus give rise to a possible exception under regulation 16(3)(c) of the Family Law (Child Abduction Convention) Regulations needed to be examined. As a consequence, an order was made for the preparation of a report and the Court now has before it the report of family consultant, Ms D, of 25 June 2009. The contents of that report speak for themselves and the conclusions which emerge from it are clear.

9. From the information gathered by the family consultant, it is clear that the statements made by the child do not support a proposition that the child objects, either in terms of the regulation or at all, to being returned to New Zealand.  At their highest, they may represent a marginal preference on the part of the child to remain resident with the father in Australia.  They are not expressly or by implication sufficient to support any inference that the child would object to being returned to New Zealand and, in any event, the Family Consultant makes it quite clear that she has significant reservations about the level of maturity and insight demonstrated by the child, sufficient to afford any expressions of significant weight.  It is clear, on the entirety of the report, that the ground referred to in regulation 16(3)(c) is not made out in this case.

10. In the circumstances, I am satisfied that the Central Authority has discharged the onus thrust upon it to satisfy the Court that the orders sought in this case should be made. 

    RECORDED  :  NOT TRANSCRIBED

    ORDER DELIVERED

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Jordan

Associate: 

Date: