Department Of Child Safety, Youth And Women and Fogarty

[2019] FamCA 81

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF CHILD SAFETY, YOUTH AND WOMEN & FOGARTY [2019] FamCA 81

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 Fogarty

FILE NUMBER: BRC 1504 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

THE RESPONDENT: In person

Orders

IT IS ORDERED BY CONSENT UNTIL FURTHER ORDER THAT

1. The Respondent Mother, Ms Fogarty (the Respondent) born … 1981, 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 Fogarty born … 1981 and the child X, a male, 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 2.00 pm 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 & Fogarty 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 1504 of 2019

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

Applicant

And

Ms Fogarty

Respondent

REASONS FOR JUDGMENT

1. By Application in Form 2 filed on 11 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 male, born in 2018.

2. The child, who is about 10 months old, was born in New Zealand and before removal from New Zealand had only ever lived in that country.

3. The requesting Applicant under the Convention is the child’s father: Mr D who was born in 1991 and who is a New Zealand national. 

4. The Respondent to the Application is the child’s mother: Ms Fogarty, who was born in 1981 and who is also a New Zealand national.

5. The father’s evidence is that he and the Respondent met at the beginning of 2017. He moved in with the Respondent and her daughter (Y) in August 2017, at which time the Respondent was in the early stages of pregnancy with the child. The father says his relationship with the Respondent ended two to three months after they moved in together and he has not lived with the Respondent since October 2017.

6. The allegations contained within the Form 2 (constituted by the affidavits and statements that compile it) are that the mother caused the child to be removed from New Zealand to Australia on 9 December 2018 and that such removal was wrongful.

7. The evidence at this point establishes, on a prima facie basis, that the circumstances concerning the child’s removal to Australia are as follows:

   a)on 17 August 2018: the Respondent emailed the father seeking that he confirm that she could take the child to Australia; his reply in writing  was “…I do not agree with you taking him!...”; and

   b)in September or October 2018: the father and Respondent had a conversation during which the father confirmed he did not agree to the child being taken out of New Zealand; his evidence is that he specifically told the Respondent that, if she took the child out of New Zealand, he would take her to court; and

   c)on 4 December 2018: the father saw the child at a McDonald’s restaurant in E Town, New Zealand; and

   d)on 4 December 2018: the father exchanged text messages with the Respondent in an attempt to arrange for the child to spend time with him in December 2018 (for a birthday); the Respondent replied to tell the father that: “Hi. Really sorry but we already have plans to stay over in [F Town] on Saturday”; and

   e)on 7 December 2018: the Respondent emailed the father, setting out her intended move to Australia; the father said he did not see this email until he spoke with the mother after she had moved to Australia; and

   f)on 9 December 2018, the Respondent and child entered Australia; and

   g)on 10 December 2018: the father sent the Respondent a text message asking to see the child; he said that the Respondent telephoned him to tell him that she has moved with the child to Australia and the child would not be coming back and that she had sent him an email on 7 December 2018; and

   h)on 11 December 2018: the father sought assistance from the New Zealand Central Authority to secure the child’s return to New Zealand and, on 22 January 2019, he signed the Application for the return of the child.

8. The father’s evidence is that, after the child was born, he spent time with him as informally agreed with the Respondent; he said he initially saw the child each day and this was then reduced to seeing him on three days per week for the first two or three months of the child’s life. He said that, after the Respondent and the child moved, the arrangement was less rigid but his time with the child resumed when the child was about four to five months of age.

9. The father said that, in about late October or early November 2018, he and the Respondent argued; it seems there was something of an altercation between the father and the Respondent’s teenage son. The father said that, after this, the Respondent reduced the time he could spend with the child.

10. According to the father’s evidence, from November 2018 until 4 December 2018, (the last time the father saw the child) he saw the child at McDonald’s on Tuesdays or Thursdays. 

11. I am satisfied that the evidence before the Court establishes, on a prima facie basis, by way of expert evidence, 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 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.

12. Interim orders were also sought (in what may be described as in the usual terms) so as to maintain the status quo, in terms of the Respondent not further moving with the child, pending the determination of this Application. 

13. As I explained to Ms Fogarty, who appeared on her own behalf this morning, the interim orders are designed to ensure that the child remains in Australia until the Application for an order for his return to New Zealand is determined.

14. The parties were agreed in relation to the interim orders which ensure that the child remains in Australia pending the hearing which is listed for 29 March 2019 before me; those Orders also provide for the receipt by the Applicant of the child’s and the Respondent’s passports. 

15. 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 placed on the file.

I certify that the preceding fifteen (15) 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