Department of Child Safety, Youth and Women and Lithgow

[2018] FamCA 190

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF CHILD SAFETY, YOUTH AND WOMEN & LITHGOW [2018] FamCA 190

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

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

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

RESPONDENT: Ms Lithgow

FILE NUMBER: BRC 2850 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 Solicitors

THE RESPONDENT: No appearance

Orders

IT IS ORDERED UNTIL FURTHER ORDER THAT

1. The Respondent Father, Ms Lithgow born … 1986 be restrained and an injunction issue, restraining him or any other person from removing, or attempting to remove the children B born … 2012 and C born … 2013 (“the children”) 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 names of B, a female child, born … 2012 and C, a male child, born … 2013 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 by directing correspondence to … to the attention of the Case Manager.

AND IT IS FURTHER ORDERED THAT

1. The Application in Form 2 filed 15 March 2018 is adjourned for further hearing to 9.00 am on 13 April 2018 before Justice Hogan.

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.

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 & Lithgow 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: BRC2850/2018

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

Applicant

And

Ms Lithgow

Respondent

Ex tempore

REASONS FOR JUDGMENT

1. I have before me today an Application in Form 2 filed by the Director‑General, Department of Child Safety, Youth and Women (in the capacity of the State Central Authority) on 15 March 2018 seeking an order for the return of the children:

   a)B, born in 2012; and

   b)C, born in 2013

   to the country of New Zealand. 

2. The requesting applicant under the Convention is the children’s mother, Ms D, a New Zealand citizen.  The Respondent to the Application is Ms Lithgow, born in 1986, in Country E, but also a citizen of New Zealand.

3. Ms Fitzgibbon, who appears on behalf of the Applicant, informs the Court that the Applicant has been unable to effect service of the Application in Form 2 on the Respondent as at today’s date.

4. Ms Fitzgibbon informs me from the bar table that the attempts to serve the Respondent at F Street, Suburb G in the State of Queensland were unsuccessful and that, as she understands the information conveyed to her, the process server asked to effect service was told by the resident of that address that he had been living there since, I think, February 2017. 

5. Other attempts to contact the Respondent have been unsuccessful, although I note that Ms Fitzgibbon informs the Court that the Applicant is in possession of a, I think, mobile telephone number which might be able to be used to give the Respondent notice of the Application.

6. It is against that background, then, that Ms Fitzgibbon seeks, on behalf of the Applicant, that I make interim orders restraining the father from removing the children from the Commonwealth of Australia, empowering the marshal and the police to take necessary steps to give effect to the orders, and causing the Commissioner of the Australian Federal Police to place the names of the children on the Family Law watch list, so as to ensure (whilst service is effected) that the children are not removed from the jurisdiction.

7. It appears, having regard to the information contained within the Form 2 Application, that at least on a prima facie level, the mother and children returned to New Zealand in about December 2016, following parental separation under the one roof in September 2016.

8. It also appears that the children have only lived in Australia between March 2016 and December 2016 - otherwise they have lived in New Zealand.

9. It appears that, on the Applicant’s case, the parents reached an agreement for the children to travel to spend holiday time with their father in Australia. According to the evidence from the mother, the agreement was that would be in for about two weeks for holidays.

10. Pursuant to that agreement (on the case of the Applicant), the children entered Australia on 25 December 2017.

11. The Applicant’s case involves the contention that, despite the agreement, the father contacted the mother on 7 January 2018 to tell her he had decided to keep the children in Australia because he thought that was best.  Further communication on 11 January 2018, on the mother’s account of it at least, was to the effect that the father told her he did not tell her of his plan to retain the children in Australia because he did not think she would send the children to Australia from New Zealand if she knew what he was planning. According to the mother, during this conversation she told the father that she wanted the children back; he told her that it was his turn to have the children and that she would know what it was like to miss them.

12. On the mother’s recounting, further communication via text occurred between the parents on 14 January 2018, during which (on her recount), the father made it clear to her that he did not intend to return the children to New Zealand.  On 20 January 2018 – which was about just five days, roughly, short of a month after they entered Australia - the children were not returned to the mother. She signed an application for return on 24 January 2018.

13. Given the mother’s evidence of the contents of the father’s conversation with her on 11 January 2018 - to the effect that he told her then, once the children were in Australia, that he did not tell her of his plan to retain them here because he didn’t think she would send them to him if she knew what he was planning - I am concerned to ensure that, pending service, there is no prospect of the children being removed from the jurisdiction. 

14. For those reasons then, I consider it appropriate to make orders by way of interim order, albeit on an ex parte basis, in the manner sought by Ms Fitzgibbon, on behalf of the Applicant. In order to ensure that there is no injustice done to the Respondent, I will also make an order that the parties have liberty to apply on the giving of 24 hours’ notice in writing.  I direct that any such application pursuant to the liberty to apply clause be brought to my attention immediately upon it being filed. 

15. I will also adjourn the hearing of the Application for further hearing to 9.00 am on 13 April 2018. 

I certify that the preceding fifteen (15) 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