Department Of Child Safety, Youth And Women and Dimatina

[2019] FamCA 66

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF CHILD SAFETY, YOUTH AND WOMEN & DIMATINA [2019] FamCA 66

FAMILY LAW – CHILD ABDUCTION – Child brought to Australia – Hague Convention – 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)
Care of Children Act 2004 (NZ)
Family Law (Child Abduction Convention) Regulations 1986 (Cth)

APPLICANT: Department of Child Safety, Youth and Women

RESPONDENT: Ms Dimatina

FILE NUMBER: BRC 951 of 2019

DATE DELIVERED: 7 February 2019

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 7 February 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT: McInnes Wilson Solicitors

THE RESPONDENT: In person

Orders

IT IS ORDERED BY CONSENT UNTIL FURTHER ORDER THAT

1. The Respondent Mother, Ms Dimatina born … 1995, be restrained and an injunction issue, restraining her or any other person from removing, or attempting to remove the child, X born … 2015 from the Commonwealth of Australia.

2. The Respondent Mother 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 Dimatina born … 1995 and the child X (a female) born … 2015 on the Family Law Watch List at all international departure points in Australia for a period of two (2) years.

5. The Respondent Mother 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 10.00 am on 8 March 2019.

AND IT IS FURTHER DIRECTED BY CONSENT THAT

1. The Respondent Mother file and serve a Notice of Address for Service by no later than 4.00 pm on 7 February 2019.

2. The Respondent Mother file and serve a Form 2A Answer and Cross-Application by no later than 4.00 pm on 20 February 2019.

3. The Respondent Mother file and serve any affidavits of evidence in chief to be relied upon at the hearing by no later than 4.00 pm on 20 February 2019.

4. The Applicant file and serve any further affidavit material intended to be relied upon at the hearing by no later than 4.00 pm on 1 March 2019.

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 Coordinator 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 4 March 2019 and notify the Case Coordinator of such request.

NOTATION

A.In the event that a witness is required to give evidence and be cross-examined by telephone, the party calling that witness shall notify the Case Coordinator 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 & Dimatina 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 951 of 2019

Department of Child Safety, Youth and Women 

Applicant

And

Ms Dimatina

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. By Application in Form 2 filed on 25 January 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 2015.

2. On the material before the Court to date - noting, as I have already conveyed to the Respondent, that it represents but one side of the story - it is clear that the child, who is now about three and a half years of age, was born in New Zealand; it is also clear that, prior to her removal from New Zealand on 6 November 2018, she had only ever lived in that country. 

3. The child’s father is Mr D. On his evidence before the Court, all members of the child’s extended family live in New Zealand and no family members live in Australia. The child’s father was born in 1991.  He is a New Zealand national.  The Respondent to the application is Ms Dimatina.  Ms Dimatina was born in 1995 and she is also a national of New Zealand. 

4. The allegations contained within the Form 2 Application include, as part of the father’s evidence, that he and the Respondent were in a relationship from approximately late 2011 until early 2015. 

5. It is alleged in the Form 2 Application, constituted by the affidavits provided by the father to date and the supporting affidavit of a legal practitioner of New Zealand, that the Respondent caused the child to be removed from New Zealand to Australia on 6 November 2018 in circumstances where that removal was wrongful, as that term is understood under the Regulations.

6. On the father’s evidence, he maintained frequent and regular contact with the child and had done so since she was five months of age.  His evidence is to the effect that they spent time together each Friday overnight, during the day on Saturday, and often overnight on Saturday as well.  In addition, his evidence suggests that the child had the opportunity to spend time with him for one night during the week as well. 

7. The time that the child and her father spent together occurred as a result of agreement reached between her parents.  There is no evidence to suggest that she is the subject of any operative Court order to date, other than that which will be made by consent.

8. On the evidence before the Court, it appears that the arrangement between the parents to facilitate the child spending time with her father involved her being collected by her paternal grandmother on the Friday night, as well as spending some time with her paternal grandmother, and perhaps members of the paternal family, from after day care on Wednesday and Thursday afternoons. 

9. The father’s evidence is to the effect that there had been prior discussion between himself and the child’s mother in relation to the mother’s desire to move to live in Australia with the child.  His evidence is to the effect that he did not take their discussions, at least initially, seriously.

10. In summary, he says in his affidavit that there was, in essence, a meeting between the parents at which time he conveyed that he did not agree to the mother removing the child from New Zealand and did not agree to the child moving to live in Australia; it is sufficient at this stage to leave the summary of his evidence at that. 

11. The evidence relied on in the Form 2 Application also is to the effect that, when the paternal grandmother attended at the day-care at which the child attended to collect the child to spend time with her on 7 November 2018, she was told that the child had not attended day-care on that day.  It appears likely, then, that she had attended at least for some time on 6 November 2018 and left New Zealand for Australia at some time on that day.

12. The evidence is to the effect that the mother and the child entered Australia on 6 November 2018. 

13. The evidence also suggests that the mother sent the father a text message on 9 November 2018 acknowledging that she and the child were in Australia and advising him that the child was safe.  His response was, “Don’t worry.  See you in court.”  That response suggests that it is unlikely that one could conclude there was any acquiescence by the father following provision of information by the Respondent that the child had left New Zealand and was present in Australia.

14. I am persuaded that the evidence before the Court at this stage establishes a prima facie case that the father has rights of custody under New Zealand law, the applicable Act being the Care of Children Act 2004 (NZ).  I am also persuaded that the evidence before the Court establishes that there is at least a prima facie case for a return order to be made. 

15. For those reasons then, it is appropriate that orders be made in terms of those proposed to be made by consent, including the limitation that those orders cast upon the mother’s freedom of movement until resolution and the final hearing and on her ability to depart from Australia or to remove the child from Australia. 

16. For those short reasons delivered orally, I make orders in terms of the minute of order provided to me, which I will initial and place with the papers.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 7 February 2019.

Associate: 

Date: 15 February 2019