Department of Child Safety, Youth and Women and Kelada

[2018] FamCA 191

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF CHILD SAFETY, YOUTH AND WOMEN & KELADA [2018] FamCA 191

FAMILY LAW – CHILD ABDUCTION – Hague Convention – Application under the Hague Convention for the return of the child to New Zealand – where the service of Form 2 has not been effected on the respondent mother – where an information order is made – where an interim injunctive order is made restraining the mother from removing the child from Australia – where an order is made to place the child on the Family Law Watch List.

Family Law Act 1975 (Cth)
Family Law (Child Abduction Convention) Regulations 1986 (Cth)

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

RESPONDENT: Ms Kelada

FILE NUMBER: BRC 2442 of 2018

DATE DELIVERED: 27 March 2018

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 27 March 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Fitzgibbon, McInnes Wilson Lawyers

THE RESPONDENT: No appearance

Orders

IT IS ORDERED THAT

1. Pursuant to s 67M of the Family Law Act 1975 (Cth), the Secretary or General Manager of the Residential Tenancies Authority (“RTA”) provide the Registrar of the Family Court of Australia at Brisbane (“the Registrar”) such information that is contained in the records of the RTA or that the RTA may obtain in relation to the:-

   (a)       whereabouts of:

   (i)The Respondent Mother Ms Kelada born … 1995 in Country B;

   (ii)The said child, C born … 2016 in New Zealand;

   (iii)Any bank account (including branch and account number) that any payments from the Respondent Mother and the said child to the RTA may be made;

   (iv)Any drivers licence number of a licence in the name of the Respondent Mother; and

   (v)Any passport number of any passport in the names of the Respondent Mother and the child, C and the country issuing the passports.

2. That the Secretary or General Manager of the RTA search the records within 14 days of the order being made and shall not be required to search the records of the RTA more than once every three months during the currency of the order which shall be one year from the date hereof.

3. Pursuant to s 67M of the Family Law Act 1975 (Cth), the Director-General of the Department of Queensland Health (“Queensland Health”) provide the Registrar of the Family Court of Australia at Brisbane (“the Registrar”) such information that is contained in the records of Queensland Health or that Queensland Health may obtain in relation to the:-

   (a)       whereabouts of:

   (i)The Respondent Mother Ms Kelada  born … 1995 in Country B;

   (ii)The said child, C born … 2016 in New Zealand;

   (iii)Any bank account (including branch and account number) that any payments from the Respondent Mother and the said child to Queensland Health may be made;

   (iv)Any drivers licence number of a licence in the name of the Respondent Mother; and

   (v)Any passport number of any passport in the names of the Respondent Mother and the child, C and the country issuing the passports.

4. That the Director-General of Queensland Health search the records within 14 days of the order being made and shall not be required to search the records of Queensland Health more than once every three months during the currency of the order which shall be one year from the date hereof.

5. Pursuant to s 67(P)(1) of the Family Law Act 1975 (Cth), leave be granted to the Registry Manager to disclose the information provided to the Registry Manager by the RTA and Queensland Health pursuant to the above orders, to the Solicitor for the Applicant, and to the employees of the Commonwealth Central Authority and all State and Territory Central Authorities.

6. A copy of any order and all material filed in support of the proceedings commenced by the Application in Form 2 filed 5 March 2018 be served immediately upon the Respondent Mother as soon as practicable after the Respondent Mother is located.

7. The RTA has liberty to apply to be heard in relation to the order upon the giving of 24 hours’ notice in writing and by directing correspondence to … to the attention of the Case Manager.

AND IT IS ORDERED UNTIL FURTHER ORDER THAT

1. The Respondent Mother, Ms Kelada born … 1995 be restrained and an injunction issue, restraining her or any other person from removing, or attempting to remove the child C born … 2016 from the Commonwealth of Australia.

2. 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 empowered to take all necessary steps to give effect to this Order.

3. The Commissioner of the Australian Federal Police place the name of C (male child) born … 2016 on the Family Law Watch List at all international departure points in Australia for a period of two (2) years.

4. The parties have liberty to apply upon the giving of 24 hours’ notice in writing and by directing correspondence to … to the attention of the Case Manager.

5. The Application in Form 2 filed 5 March 2018 is adjourned for further hearing to a date to be fixed following the location of the Respondent Mother.

IT IS DIRECTED THAT

1. Any application in this matter is brought to the attention of Justice Hogan as soon as possible after it is filed.

NOTATION

(A)The Applicant advises that the RTA has been given notice of an intention to seek an order requiring the RTA to search its records and provide information.

(B)That having had discussions with persons from the Department of Queensland Health, the Applicant advises the court that it understands at this time the Respondent Mother may be living or staying in the Suburb D and Brisbane area. The Department of Queensland Health will be regarded as complying with the Order if its records for those areas are the subject of search.

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 & Kelada 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: BRC2442/2018

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

Applicant

And

Ms Kelada

Respondent

Ex tempore

REASONS FOR JUDGMENT

1. This is the second occasion on which I have had before me what was intended to be the first return date of an Application in Form 2 by the Director-General, Department of Child Safety, Youth and Women seeking a return order in relation to the child C, born in 2016: the order sought is that he is returned to New Zealand. 

2. That Form 2 Application was filed 5 March 2018. The matter first came before me on 19 March 2018.  On that occasion, Ms Fitzgibbon informed the Court that, despite attempts to serve the Respondent at the addresses known to the Applicant, such attempts had been unsuccessful. 

3. On 19 March 2018, I heard and made some orders as sought by an Application in a Case filed 15 March 2018.  The orders sought, by way of summary, were location and Commonwealth information orders.  Because notice had not been given to some of the parties against whom location orders were sought, the matter was adjourned to today to permit that notice to be given. 

4. Ms Fitzgibbon, who appears for the Applicant today, no longer presses that an order be made against Queensland Transport. I have made orders directed to Queensland Health, albeit somewhat narrowed in the manner outlined during discourse with Ms Fitzgibbon, and to the Residential Tenancies Authority. 

5. Given that the efforts to date have not been successful in locating the Respondent, Ms Fitzgibbon seeks that I make interim orders restraining her (the Respondent) from removing the child from the jurisdiction pending her service with the application and the opportunity to be heard in relation to anticipated further interim orders restraining the child from leaving the jurisdiction until the Application for a return order is heard and determined.

6. In terms of that application, it is appropriate, I think, to record, as I have said, that the Form 2 Application seeks a return order with respect to a child C, a male born in 2016. 

7. The requesting applicant under is the child’s father, Mr E, who, on the material before me, seems to be originally a refugee from South America. Mr E, I’m told, has permanent residency in New Zealand and has achieved that status since August 2013.  The Respondent to the application is Ms Kelada, who was born on in 1995.  The information before me is to the effect that she, too, is a refugee, albeit from Africa; she is now a New Zealand citizen. 

8. The contention appears to be that the Respondent and the child entered Australia on 1 November 2017 and that they did so contrary to and without the father’s agreement.  There had been some difficulties, it seems, on his case, at least, in relation to interaction with the child. 

9. The information that persuades me that it is appropriate to make interlocutory orders of an injunctive nature is the information conveyed by Ms Fitzgibbon when the matter first came before me to the effect that the information provided by the Respondent on entering Australia was such that, when attempts were made to serve the Respondent at that address, it was discovered that it did not exist. 

10. I intend also to make an order that the Respondent has liberty to apply on the giving of 24 hours’ notice in writing, and also to direct that any such application (which takes advantage of the liberty to apply order) be brought to my attention immediately. 

11. In that way, once made aware of the existence of orders impacting upon her, the Respondent will have the opportunity to be heard quickly in relation to them. 

12. I am persuaded that it is, though, appropriate at this point in time to make orders in the terms sought by Ms Fitzgibbon on behalf of the Applicant so as to ensure that the child is not removed from the jurisdiction pending the determination of the Form 2 Application filed 5 March 2018. 

13. For those very short reasons delivered orally, I make the following interim orders.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 27 March 2018.

Associate:

Date:  28 March 2018