Department of Child Safety and Kells

[2009] FamCA 452

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF CHILD SAFETY & KELLS [2009] FamCA 452

FAMILY LAW – CHILD ABDUCTION – Hague Convention – Family Law (Child Abduction Convention) Regulations1986 – construction of Regulation 16(2)(c) “settled in his or her new environment” – whether the child so “settled” – whether a discretionary power exists per Regulations 15(1) and 16(2) – the criteria for the exercise of discretion – whether the discretion be exercised in favour of one of the parties

Family Law (Child Abduction Convention) Regulations 1986 Regulations 14, 15(1), 16(2), 16(3)

Townsend v Director-General, Department of Families, Youth and Community Care (1999) FLC 92-842
Graziano and Daniels (1991) FLC 92-212
Secretary, Department of Human Services State Central Authority & CR (2005) FLC 93-243
State Central Authority v Ayob (1997) FLC 92-746
Director General, Department of Families, Youth and Community Care v Thorpe (1997) FLC 92-785
Director General, Department of Community Services v M & Anor (1998) FLC 92-829
Secretary, Attorney-General’s Department v TS (2001) FLC 93-063
Cannon v Cannon [2005] 1 FLR 169
Re M (Children)(Abduction: Rights of Custody) (2008) 1 All E.R. 1157
De L v Director General, NSW Department of Community Services & Anor (1996) FLC 92-706

State Central Authority & Uurainen (No.2) [2008] FamCA 1046

APPLICANT: Director-General
Department of Communities (Child Safety Services)

RESPONDENT: Ms Kells

FILE NUMBER: BRC 1299 of 2009

DATE DELIVERED: 29 May 2009

PLACE DELIVERED: Sydney

PLACE HEARD: Brisbane

JUDGMENT OF: The Hon. Justice Rose

HEARING DATE: 18 May 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Crown Law

COUNSEL FOR THE RESPONDENT: K. Parrott

SOLICITOR FOR THE RESPONDENT: Journey Family Lawyers

Orders

1. That the Application of the Applicant filed 16 February 2009 is dismissed.

2. That Orders numbered 1, 2, 3, 4 and 5 made 25 February 2009 are discharged.

IT IS NOTED that publication of this judgment under the pseudonym Department of Child Safety & Kells is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER:  BRC 1299 of 2009

DIRECTOR-GENERAL
DEPARTMENT OF COMMUNITIES (CHILD SAFETY SERVICES)

Applicant

And

MS KELLS

Respondent

REASONS FOR JUDGMENT

Introduction

1. In these proceedings the applicant seeks an order for the return of the child pursuant to the Family Law (Child Abduction Convention) Act and Regulations 1986.

2. The application filed 16 February 2009 (“the Application”) is made pursuant to Regulation 14.

3. Orders are sought pursuant to Regulation 15.

4. The child the subject of these proceedings is a daughter born in July 1997 (“the child”).

5. The child was born in New Zealand.

6. The parents are the respondent mother and Mr MT.

7. The mother resides in Australia.

8. The father resides in New Zealand.

9. The child resides with the mother.

10. The mother and the father lived together in New Zealand for a period of about 8 years which commenced in 1996 and concluded when they separated in 2004.

11. On 9 January 2008 the mother and child left New Zealand and commenced to live in Australia.  The mother has lived in Australia with…