Department of Child Safety, Youth and Women and Hejiz and Anor

[2018] FamCA 354

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF CHILD SAFETY, YOUTH & WOMEN & HEJIZ & ANOR [2018] FamCA 354

FAMILY LAW – CHILDREN – Interim order – where the Children’s Court has ordered that the Respondent surrender the child’s passport – where the Children’s Court order continues to be in force until February 2019 – where it is ordered that the child’s name is placed on the Family Law Watchlist until February 2019

FAMILY LAW – COSTS – where the Respondent makes an oral application for costs – where it is ordered that there shall be no order as to costs

Child Protection Act 1999 (Qld)
Family Law Act 1975 (Cth)

APPLICANT: Director General Department of Child Safety, Youth & Women

1st RESPONDENT: Ms Hejiz

2nd RESPONDENT: Ms Malone

FILE NUMBER: BRC 5091 of 2018

DATE DELIVERED: 14 May 2018

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 14 May 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms L.M. Walsh

COUNSEL FOR THE 1ST RESPONDENT: Ms E Wardle

SOLICITOR FOR THE 1ST RESPONDENT: RA Solicitors

2ND RESPONDENT: No appearance

Orders

IT IS ORDERED UNTIL FURTHER ORDER THAT

1. 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.

2. The Commissioner of the Australian Federal Police place the names of the said child B (born … 2013) (also known as B) on the Family Law Watchlist at all international departure points in the Commonwealth of Australian, and maintain the child’s name on the Watchlist for a period of nine (9) months:  that is, until 13 February 2019.

3. The Applicant be at liberty to forthwith notify the Australian Federal Police of these Orders.

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

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

AND IT IS FURTHER ORDERED THAT

1. The Initiating Application seeking final orders filed on 11 May 2018 is adjourned to a date to be advised not before 13 February 2019.

2. There be no order as to costs associated with the appearances today.

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 Department of Child Safety, Youth and Women & Hejiz and Anor 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 5091 of 2018

Director General Department of Child Safety, Youth & Women

Applicant

And

Ms Hejiz

1^st Respondent

And

Ms Malone

2nd Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. I have before me an Initiating Application filed by the Applicant on 11 May, which is, of course, last Friday.  It was listed initially for determination before the Court at 2.00 pm today.  When the parties appeared at or around 2.30 pm this afternoon, I was informed by Ms Wardle, who appears on behalf of the Respondent, that there were proceedings on foot in the Children’s Court and that the presiding judicial officer, Magistrate Moloney, had advised the parties in those proceedings of the intention to make certain orders – albeit that the orders themselves had not issued.

2. Faced with that information, Ms Wardle applied for the matter to be stood down. That application was certainly not opposed by Ms Walsh, who appears on behalf of the Applicant. 

3. When the parties returned before me later this afternoon, I was provided with a copy of a Child Protection Order made by Magistrate Moloney in the Children’s Court today.  That document is Exhibit 1 in the proceedings.  Reference to it establishes that an order was made today requiring the Chief Executive to supervise the protection of the child, B, born in 2013 in relation to specified matters. 

4. In addition, a number of directive orders have been made.  They, in summary, direct the Respondent not to remove the child, or aid, abet or allow the child to be removed from Australia; they direct her, within 24 hours of today, to surrender to the Chief Executive the child’s passport and restrain and prohibit her from applying for a further passport or travel documents for the child to facilitate any international travel for a period of the order; they also provide that, upon expiration of the order, the Chief Executive will, within seven days, return the child’s passport to the Respondent.

5. The order is said to be made to continue in force until 13 February 2019.  So it is following that date, therefore, that the child’s passport will be returned to the mother and, following that date, she will be relieved of the restraints imposed upon her by the existing order made today in the Children’s Court.

6. Faced with that information, and the events of today, Ms Walsh amended the relief sought by the Applicant on an interim basis, such that the orders sought now, in summary, are that the Marshal of the Court and Commissioner and all federal agents of the Australian Federal Police and officers of police forces and services of the various states, are directed to take necessary steps to give effect to the orders and that the Commissioner of the Australian Federal Police place the child’s name, or names, upon the Family Law Watchlist until 13 February 2019 – which is the date on which the Child Protection Order made today expires.  Also that the Applicant be at liberty to notify the Australian Federal Police forthwith of the existence of the order and, as soon as practicable, cause a copy of the order to be served on the Australian Federal Police. 

7. In arguing for the orders, Ms Walsh submitted, in essence, that the Court would be persuaded that it is appropriate and proper and that the balance of convenience favours and that it is otherwise in the child’s best interests to make the orders sought by the Applicant on the basis that, on the evidence before the Court, in 2014 the Respondent took the child outside Queensland at a time when the Applicant had a Temporary Protection Order.  It is submitted by Ms Walsh that those actions amounted to actions on behalf of the Respondent taken, in essence, in deliberate disobedience to the previous, then existing, order of the Children’s Court:  the consequences were, at that time, that a warrant issued for the return of the child to the jurisdiction.

8. Ms Walsh submitted that the risk in the present case, taking into account the terms of the directive order made by the Magistrate today in the Children’s Court, is that such orders do not practically prevent the child from being removed from the Commonwealth of Australia in the event the Respondent chose to disregard the terms of that order and applied for new, or supplementary, travel documents so as to permit that travel. 

9. Ms Walsh also relied upon the contents of an affidavit, although many of its paragraphs, it seems to me, are no longer as relevant as they perhaps might have been should the relief sought by the Applicant have remained as it was particularised in the Initiating Application when filed. 

10. The difficulty, as I have made clear to Ms Walsh, in considering any application to make final orders is the fact that, as was conveyed by Ms Wardle from the bar table (on behalf of the Respondent), documents in support of the application and the Application itself were only provided to the Respondent at 4.58 pm on Friday. 

11. The obvious consequence of that is that the Respondent has not been afforded an appropriate opportunity to respond via evidence in the event that assertions contained within the affidavit relied upon by the Applicant, are not the subject of agreement, but are the subject of contention.

12. It seems to me, therefore, that in the circumstances, the only manner in which I could appropriately approach my consideration of the matter is to determine whether I am persuaded, given the existence of the orders and directions made in the Children’s Court, that it is necessary, or proper, or that the child’s best interests require, and that the balance of convenience favours, the making of an order for the child’s name to be placed on the Watchlist for the same period of time already covered by the Child Protection Order made today.

13. In arguing against that conclusion, Ms Wardle, on behalf of the Respondent, emphasised the passage of time between 2014 and the present, the age of her client as at 2014 and as at present.  She also emphasised the fact that the existing order made today in the Children’s Court is “only” a protective supervision order.  Ms Wardle also emphasised, albeit from the bar table (but understandably in the circumstances), that the Respondent, on her instructions, had not been acting dishonestly (to use her term) or seeking to go behind the Applicant’s back.  She had informed them, in fact, of her intention to travel outside the Commonwealth of Australia with the child and had provided information about that proposed travel.  Of course, that travel shall no longer be put into effect as a consequence of the directive orders made today by Magistrate Moloney. 

14. Whilst Ms Wardle submitted, in response to a query about the extent of the risk in the event that, as was submitted by Ms Walsh, an alternative travel document was obtained and used (in the absence of a name placed on the Watchlist) as to the existence of a bilateral agreement between Country C and Australia, I am not persuaded that the existence of such agreement necessarily provides much comfort. 

15. Whilst I think there are some persuasive points in the submissions made by Ms Wardle, on balance I am persuaded that it is appropriate and proper and that the best interests of the child favour, and that the balance of convenience favours, the making of an order placing the child’s name on the Watchlist for the period of time until 13 February 2019. 

16. In that way, any risk of disruption to the child’s functioning and to the manner in which he is living within the community (as has been outlined within the affidavit material relied upon by the Applicant) and the concerns and difficulties sought to be addressed in that functioning within the community, can be completely eliminated. 

17. Given the existence of the terms of the protection order and the fact that the orders sought for the placement of the name on the Watchlist will coincide, I am persuaded for these reasons, expressed orally, to make an order in terms of clauses 1, 2, 3 and 4 and 5 of the Minute of proposed order provided by Ms Walsh on behalf of the Applicant which I have simply dated and signed.  I make orders in those terms. 

First Respondent’s oral application for costs

1. Ms Wardle, who appears on behalf of the Respondent, makes application for an order for costs in the circumstances of the manner in which the Application has been filed and brought on today.  Her submission is that the timeliness of its listing has had the consequence that the Respondent was not put into a position whereby she could have sought the provision of Legal Aid funding and, as a consequence, has incurred legal costs associated with the proceedings in this jurisdiction and in the Children’s Court.  The proceedings in the Children’s Court proceed on the basis that there are no costs orders to be made. 

2. Of course, the position in relation to orders for costs under the Family Law Act 1975 (Cth) is governed by s 117 of the Act, which provides that, subject to subsection (2) of that section (and other sections that are not necessarily relevant to this application), each party to proceedings under the Act shall bear his or her own costs. Subsection (2) of section 117 of the Act provides that, if the Court is of the opinion that there are circumstances that justify it in doing so, it may, subject to subsections (2A), (4), (4A) and (5) and the Rules, make such order as to costs (and security for costs) as the Court considers just.

3. Those considerations or matters to which the Court shall have regard are prescribed in section 117(2A) of the Act.  In summary, they are the respective financial circumstances of the parties; whether a party is in receipt of Legal Aid; the conduct of the parties to the proceedings; whether the proceedings were necessitated by a failure of a party to comply with previous orders; whether any party has been wholly unsuccessful; whether any party has made offers in writing, and any other matters considered relevant.

4. Of the specific considerations prescribed under s 117(2A) that seem to me to be particularly relevant is, of course, the consideration of whether any party has been wholly unsuccessful in the proceedings.  I think it’s also relevant, perhaps under (g), to note that, albeit in the circumstances of late service that I have already referred to, the reality for the Respondent is that the proceedings in the Children’s Court and the proceedings in this Court were both able to be accommodated today:  in that way, at least, she has not been put to additional costs in responding to those two separate applications in two different jurisdictions on two different days. 

5. I take into account the submissions made by Ms Walsh that the relief sought ultimately by the Applicant in this Court following upon the reality of events as they unfolded today in the Children’s Court encapsulated relief that could not have been sought in that jurisdiction.  It is clear from the orders I have made that the Applicant was successful in persuading the Court as to the appropriateness of making the orders sought.  In the circumstances, even noting the issues raised by Ms Wardle on behalf of her client, I am not persuaded that the circumstances justify the making of an order as to costs of these proceedings.  Therefore, the order shall be that there is no order as to costs.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 14 May 2018.

Associate:     

Date:              14 May 2018