Department of Child Safety, Youth and Women and Ponsford

[2018] FamCA 759

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF CHILD SAFETY, YOUTH AND WOMEN & PONSFORD [2018] FamCA 759

FAMILY LAW – CHILD ABDUCTION – Hague Convention – Child retained in Australia after the end of a holiday period – 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: Department Of Child Safety, Youth And Women

RESPONDENT: Mr Ponsford

FILE NUMBER: BRC 10257 of 2018

DATE DELIVERED: 24 September 2018

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 24 September 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Fitzgibbon, McInnes Wilson Lawyers

SOLICITOR FOR THE RESPONDENT: Mr Stockall, Michael Stockall Solicitor

Orders

IT IS ORDERED BY CONSENT UNTIL FURTHER ORDER THAT

1. The Respondent Father, Mr Ponsford, born … 1973, be restrained and an injunction issue, restraining him or any other person from removing, or attempting to remove the child, X, a male, born … 2009 from the Commonwealth of Australia.

2. The Respondent Father, Mr Ponsford, born … 1973, be restrained and an injunction issue, restraining him from changing the said child’s usual day to day residence from the premises where he and the said child are currently residing, namely, B Street, C Town 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 required and empowered to take all necessary steps to give effect to this Order.

4. The Commissioner of the Australian Federal Police place the names of the Respondent Father, Mr Ponsford, born ... 1973 and the said child, X, a male, born ... 2009 on the Family Law Watchlist at all international departure points in Australia for a period of two (2) years.

5. The Respondent Father surrender forthwith to an officer of the Department of Child Safety, Youth and Women all current passports relating to himself and the said child, X, a male, born ... 2009.

6. The Applicant has liberty to forthwith notify the Australian Federal Police of this Order.

7. As soon as practicable, the Applicant cause a copy of this Order to be served on the Australian Federal Police.

8. The parties have liberty to apply by directing correspondence to … to the attention of the case manager.

AND IT IS FURTHER ORDERED THAT

1. Pursuant to Regulation 26 of the Family Law (Child Abduction Convention) Regulations 1986 (Cth), a Family Consultant nominated by the Senior Family Consultant, Brisbane Registry prepare a report on the following matters relating to the care, welfare and development of the child, X, a male, born ... 2009, with an interview to occur at the Family Court of Australia, Brisbane on 17 October 2018 at a time to be advised:

   (a)whether the child objects to being returned to New Zealand;

   (b)whether any objection by the child to being returned to New Zealand shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes;  and

   (c)whether the child has attained an age and degree of maturity at which it is appropriate to take account of his views.

2. The Respondent do all things necessary to ensure that the child attends at Child Dispute Services, Family Court of Australia, Brisbane Registry on 17 October 2018, at a time to be advised, for the purpose of the interview with the Family Consultant.

3. All parties do all things as reasonably requested by the Family Consultant to facilitate the interview process.

4. Liberty is given to the Applicant to disclose and provide a copy of the Regulation 26 Report to officers of the Department of Child Safety, Youth and Women, the Commonwealth Attorney-General’s Department and their respective legal advisors, the Central Authority of New Zealand, Ms Ponsford (the mother) and any lawyer or legal representative or other professions engaged on the mother’s or the Applicant’s behalf, in relation to the Application.

IT IS DIRECTED THAT

1. The Application in Form 2 is listed for hearing before Justice Hogan at 10.00 am on Friday, 2 November 2018.

AND IT IS FURTHER DIRECTED BY CONSENT THAT

1. The Respondent Father file and serve a Form 2A Answer and Cross-Application by no later than 4.00 pm on 1 October 2018.

2. The Respondent Father file and serve any affidavits of evidence in chief to be relied upon at the hearing by no later than 4.00 pm on 1 October 2018.

3. 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 26 October 2018.

4. 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 30 October 2018 and notify the Case Co-ordinator of such request.

2. Any party notified that a witness in that party’s case is required for cross-examination shall make appropriate arrangements to facilitate the same so that, if leave to cross-examine is granted by the presiding Judge, the matter can proceed to be heard on its listed date.

NOTATION

(A)The child will travel with the paternal grandparents, for the limited purpose of a holiday, to spend time with the extended paternal family at D Street, Suburb E in the State of New South Wales from 25 September 2018 to 6 October 2018.

(B)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 Co-ordinator of the telephone number to be used to contact that person

(C)Such leave for a witness to 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/s or report/s;  and

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.

(D)The Court requests the Regional Co-ordinator of Child Dispute Services (Queensland) or nominee to advise the Court via email directed to the Judge’s Associate when the report has been finalised so that an order can then be made in Chambers to release the same to the parties.

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 & Ponsford 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 10257 of 2018

Department Of Child Safety, Youth And Women

Applicant

And

Mr Ponsford

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. By Application in Form 2 filed on 6 September 2018, 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 nine year old X, a male born in Australia in 2009.

2. The requesting Applicant, under the convention, is the child’s mother, Ms Ponsford, born in 1977 and a New Zealand national. The Respondent to the Application is the child’s father, Mr Ponsford, born in 1972 in Australia. 

3. The evidence is to the effect that the father and the child are currently residing at an address in C Town in Queensland. 

4. It appears, from the documents, which together comprise the Form 2 Application, that the child’s mother moved from New Zealand to live in Australia in about 2001. According to the evidence in the Form 2 Application, she and the Respondent married in F Town in 2006.

5. Her evidence is to the effect that she and the Respondent and the child moved to live in New Zealand – she says on a permanent basis – in July 2017.  That assertion is, at least, having regard to the contents of correspondence passing between the Respondent’s solicitor and the Applicant’s solicitor, it seems, a matter in contest.  The child’s mother gives evidence of the parties selling furniture and renting out the former matrimonial home which is located at G Town.  She says they caused pets to be transported to New Zealand and also caused a motor vehicle to be transported to that country also. 

6. As I understand the evidence thus far, it is to the effect that tickets for the travel from Australia to New Zealand were booked such that final payment was due for them on 22 May 2017; as I appreciate the evidence at this point in time, it appears that the mother, father and child travelled on one-way tickets to New Zealand.

7. According to the mother’s evidence, the child and his parents moved to live with or stay with the maternal grandfather. The child was enrolled in, and started to attend at, a local school from Term 3 of 2017; it appears, on the evidence of the mother, that the Respondent established a garden and home maintenance business, operated through a company sought to be registered in New Zealand on about 16 August 2017; she also obtained employment. 

8. The mother’s case, advanced on behalf of the Applicant, in a sense, is to the effect that, by virtue of these features, the child’s habitual residence was in New Zealand immediately before the Respondent retained him in Australia in July of this year.

9. The mother’s evidence is that she agreed for the child to return with his father to Australia for a holiday during the June/July 2018 school holiday period, but she did not agree to him returning to live in Australia and/or remaining in this country after the end of that holiday period. 

10. The mother’s evidence is to the effect that her decision to agree for holiday travel (on her case) occurred in the context of the parties having some discussions on or about 29 June 2018 about separating; she says in her evidence that, on 1 July 2018, the parties discussed the family traveling to Australia for a holiday at the expense of the paternal grandmother.

11. She says that she agreed to the child and father travelling to Australia and she booked return flights for them, from New Zealand to Australia, using the credit card details provided by the paternal grandmother.  The mother’s evidence is that, on 5 July 2018, she took the Respondent and the child to the airport.  Despite, it seems, the Respondent not having a current passport, he was able to leave New Zealand and travel to Australia. The mother says this occurred because he conveyed that he would apply for an emergency passport once back in Australia so as to permit him to return to New Zealand.

12. In any event, the Respondent and the child entered Australia on 5 July 2018. On the evidence to date, it appears that, on 7 July 2018, the Respondent told the mother that he was not returning the child to New Zealand and that he had obtained some legal advice. On her evidence, on 10 July 2018, legal representatives she had engaged foreshadowed an application under the Regulations and pursuant to the Convention.

13. On 14 July 2018, the Respondent and child were due to return to New Zealand on the pre-booked return flight but did not do so. 

14. The evidence is then to the effect that, on 17 July 2018, the Respondent’s solicitor’s corresponded to outline the Respondent’s position that he did not consider the parties’ move to New Zealand to have been a permanent one. 

15. On 7 August 2018, the mother signed the Application seeking a return order for the child; the Form 2 application initiating proceedings for the return order was filed in this Court on 6 September 2018.

16. It appears from the correspondence authored by the Respondent’s solicitor (dated 17 July 2018) that the Respondent contends as follows:

    a.the move to New Zealand in July 2017 was not permanent in that the parties did not sell the former shared home but, instead, retained ownership of the same in case their move to New Zealand did not work out - such move was on a trial basis and there was always the option to return to Australia; and

    b.the child wants to live in Australia and objects to returning to New Zealand, (a contention that has resulted in the proposed order for the preparation of a Regulation 26 report); and

    c.New Zealand was not the child’s place of habitual residence and he was not settled in that country before his return to Australia in July 2018. 

17. Other aspects of the Respondent’s case may, of course, become apparent once the Respondent is afforded the opportunity to file material in accordance with the timetable agreed between the parties to facilitate the final hearing of this matter on 2 November 2018. 

18. I am certainly satisfied that there is a prima facie case established on the evidence provided (as contained within the Form 2 Application) to the effect that the child’s retention in Australia after 14 July 2018 was wrongful in the sense that that term is understood pursuant to the Regulations.

19. Whether, of course, that case is ultimately made out will depend upon the trial; however, I am satisfied that there is, on an interim basis, an established prima facie case for a return order to be made such that it is appropriate that orders be made in the terms of the minute provided by Ms Fitzgibbon, who appears on behalf of the Applicant and consented to, as I understand it, by the Respondent, for whom Mr Stockall appears this morning. 

20. For those short reasons then, I will make orders in terms of the minute (as amended in the manner that I have outlined during the course of discourse); the orders will issue and the matter will be listed for final hearing before me on 2 November this year.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 24 September 2018.

Associate:     

Date:    25 September 2018