Department Of Child Safety, Youth And Women and Brightman

[2019] FamCA 80

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF CHILD SAFETY, YOUTH AND WOMEN & BRIGHTMAN [2019] FamCA 80

FAMILY LAW – CHILD ABDUCTION – Hague Convention – Child brought to Australia – Application under the Hague Convention for the return of the child to New Zealand – prima facie case for return order established – interim order made

Family Law Act 1975 (Cth)
Family Law Child Abduction Convention Regulations 1986 (Cth)
Care of Children Act 2004 (NZ)

APPLICANT: Director-General, Department of Child Safety, Youth and Women

RESPONDENT: Ms Brightman

FILE NUMBER: BRC 1656 of 2019

DATE DELIVERED: 22 February 2019

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 22 February 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT: McInnes Wilson Lawyers

THE RESPONDENT: In person

Orders

IT IS ORDERED BY CONSENT UNTIL FURTHER ORDER THAT

1. The Respondent Mother, Ms Brightman (the Respondent) born … 1997, be restrained and an injunction issue, restraining her or any other person from removing, or attempting to remove the child, X born … 2018 (the child) from the Commonwealth of Australia.

2. The Respondent be restrained and an injunction issue, restraining her from changing the child’s usual day to day residence from the premises where she and the child are currently residing at B Street, Suburb C in the State of Queensland.

3. 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 directed to take all necessary steps to give effect to these orders.

4. The Commissioner of the Australian Federal Police place the names of the Respondent Mother, Ms Brightman born … 1997 and the child X, a female, born … 2018 on the Family Law Watch List at all international departure points in Australia for a period of two (2) years.

5. The Respondent surrender forthwith to an officer of the Department of Child Safety, Youth and Women all current passports relating to herself and the child.

6. The Applicant be at liberty to forthwith notify the Australian Federal Police of these orders.

7. As soon as practicable, the Applicant cause a copy of these orders to be served on the Australian Federal Police.

8. There be liberty to apply by directing correspondence to … to the attention of the case manager.

AND IT IS DIRECTED THAT

1. The Application in Form 2 is listed for hearing before Justice Hogan at not before 10.30 am on 29 March 2019.

AND IT IS FURTHER DIRECTED BY CONSENT THAT

1. By no later than 4.00 pm on 22 February 2019: the Respondent Mother file and serve a Notice of Address for Service.

2. By no later than 4.00 pm on 12 March 2019: the Respondent Mother file and serve a Form 2A Answer and Cross-Application.

3. By no later than 4.00 pm on 12 March 2019: the Respondent Mother file and serve any affidavits of evidence in chief to be relied upon at the hearing.

4. By no later than 4.00 pm on 21 March 2019: the Applicant file and serve any further affidavit material intended to be relied upon at the hearing.

5. In the event any party requires any of the following at the trial of this matter:

   (a)   an interpreter; or

   (b)audio or visual equipment, including for the playing of any video or audio recordings; or

   (c)Cisco Jabber video equipment; or

   (d)a hearing loop,

   they are to notify the Case Co-ordinator for the matter in writing as soon as possible and no later than fourteen (14) days prior to the commencement of the final hearing.

AND IT IS FURTHER DIRECTED THAT

1. In the event that either party seeks to cross-examine any witness relied upon by the other party then that party shall notify the other party of that intention by    4.00 pm on 26 March 2019 and notify the Case Co-ordinator of such request.

NOTATION

(A)In the event that a witness is required to give evidence and be cross-examined by telephone, that party calling that witness shall notify the Case Co-ordinator of the telephone number to be used to contact that person.

(B)Such leave to have a witness appear by telephone is conditional upon each witness being informed that they are:

(a)   to be in a private place when they are called to give evidence; and

(b)to have with them a copy of their affidavit; and

(c)to have available to them a method by which they can receive, electronically, any documentation that any party may wish them to be shown during the course of cross-examination.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym DCSYW & Brightman has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 1656 of 2019

Director-General, Department of Child Safety, Youth and Women

Applicant

And

Ms Brightman

Respondent

REASONS FOR JUDGMENT

1. By Application in Form 2 filed on 13 February 2019, the Director-General of the Department of Child Safety, Youth and Women in his capacity as the State Central Authority under the Family Law Child Abduction Convention Regulations 1986 (Cth) applies for interim and final orders with respect to the child, X, a female, born in 2018. The child, who is nearly nine months old, was born in New Zealand and before removal from New Zealand had only ever lived in that country.

2. The requesting Applicant under the Convention is the child’s father, nearly 22 year old Mr D, who was born in 1997 and who is a New Zealand national. 

3. The Respondent to the Application is 22 year old Ms Brightman, who was born in 1997 in Australia. The mother moved to New Zealand in 2014.

4. The evidence is that the mother and the child are currently residing at B Street, Suburb C in the State of Queensland. 

5. The father and the Respondent started chatting online when they were about 16 years of age. The father’s evidence is that he and the Respondent were in a de facto relationship for approximately five years and, for the majority of their relationship, they lived with his mother (the child’s paternal grandmother).

6. The father said the relationship ended on 17 October 2018 when the child was five months of age. On this date, the Respondent moved out of the house she lived in with the father and the paternal grandmother, taking the child with her. The father said the Respondent then blocked him on Facebook and he was otherwise unable to make contact with her.

7. The allegations contained within the Form 2 (constituted by the affidavits and statements that compile it) are that the Respondent caused the child to be removed from New Zealand to Australia on 31 October 2018 and that such removal was wrongful.

8. The circumstances concerning the child’s removal are as follows:

   a)on 17 October 2018: the parental relationship ended; the Respondent  moved out of the house they were living in with the paternal grandmother; this is the last date on which the child saw her father; and

   b)on 23 October 2018: the father sought legal advice from a lawyer in New Zealand about what steps he could take to stop the Respondent taking the child to Australia: he said he was told that he needed credible evidence that the Respondent was planning such a move; upon instructing the lawyer that he had “a feeling” the Respondent may try to move (and providing details of prior conversations with the Respondent), he was advised that this would not be sufficient to obtain a Court Order; and

   c)on 3 November 2018: the father was advised by the paternal grandmother that she had received information that the Respondent had taken the child to Australia; and

   d)on 28 November 2018: the father signed the Application for the return of the child.

9. The father said that he was actively involved in the child’s life on a daily basis for the first five months of her life.

10. The father’s evidence is that, towards the end of the relationship, the Respondent had expressed to him she would like to relocate to Australia, as some of her family is located here; he said this was not something he was interested in doing; his evidence is that the Respondent was clear on his views about this.

11. The father also said that the child was born with a disability as a result of a birth injury; she currently has almost no movement in one arm, from the shoulder to the fingers. As a result of this injury, the father, the Respondent and the child attended the first of a series of intended appointments in New Zealand, for the purpose of beginning the process for the child to have surgery in early 2019 to reattach nerves in her arm.

12. As a result of the breakdown in communication between himself and the Respondent, the father was initially unsure about whether the Respondent attended the most recent appointment with the child; however, his inquiries suggested that she had cancelled the child’s appointments and advised that she was going to Australia and was not sure if she would return to New Zealand.

13. The father is concerned that, as a national of New Zealand, the child may not have the same access to treatment here as she will have in New Zealand.

14. I consider that the evidence before the Court at this stage establishes, on a prima facie basis, by way of expert evidence, that the father has rights of custody under New Zealand law, that applicable Act being the Care of Children Act 2004 (NZ).  I am also satisfied, having regard to the Form 2 Application and the material filed in support, that there is a prima facie case for a return order to be made.

15. Given the nature of the Application, the proceedings have been accorded significant priority in the allocation of a final hearing. In the meantime, interim orders are sought, in what may be described as in the usual terms, so as to maintain the status quo (as it were) in terms of the Respondent not further moving with the child, pending the determination of this Application. 

16. The parties were agreed in relation to these interim orders.  Those orders, in effect, by way of very broad summary ensure that the child to remain in Australia pending the hearing which is listed for 29 March 2019 before me and also provide for the receipt by the Applicant of the child’s and mother’s passports.  As I explained to Ms Brightman, who appeared on her own behalf this morning, the orders are designed to ensure that the child remains in this country until the Application for an order for her return to New Zealand is heard. 

17. I was satisfied that it is appropriate to make the interim orders consented to by the parties.  I therefore made the interim orders as per the draft provided, which I initialled and which have been placed on the file.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 22 February 2019.

Associate: 

Date:  22 February 2019