Department of Child Safety, Youth and Women and Rattana

[2019] FamCA 231

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF CHILD SAFETY, YOUTH AND WOMEN & RATTANA [2019] FamCA 231

FAMILY LAW – CHILD ABDUCTION – Child brought to Australia – Hague Convention – Application under the Hague Convention for the return of the children to New Zealand – where service of the Form 2 Application has not yet been effected on the Respondent Mother – where attempts to serve the Respondent with the Form 2 Application will continue – interim injunctive order made ex parte.

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 Rattana

FILE NUMBER: BRC 3605 of 2019

DATE DELIVERED: 12 April 2019

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 12 April 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Fitzgibbon, McInnes Wilson Lawyers

RESPONDENT: No appearance

Orders

IT IS ORDERED UNTIL FURTHER ORDER THAT

1. The Respondent Mother, Ms Rattana, born … 1964, be restrained and an injunction issue, restraining her or any other person from removing, or attempting to remove the said children, X, a female born … 2004 and Y, a male born … 2005, 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 required and empowered to take all necessary steps to give effect to this Order.

3. The Commissioner of the Australian Federal Police place the names of the Respondent Mother, Ms Rattana, born … 1964 and the said children, X, a female born … 2004 and Y, a male born … 2005 on the Family Law Watchlist at all international departure points in Australia for a period of two (2) years.

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

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

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

7. The matter be adjourned a date to be fixed by the Court.

8. Upon the Respondent being served with a copy of the Application in Form 2 and the Order made today, the Applicant forthwith notify the Court by directing correspondence to … of the fact that service has been effected to enable the Court to allocate the matter a hearing date with urgency.

9. The Applicant has liberty to apply for the urgent listing of the matter as soon as service is effected.

IT IS DIRECTED THAT

1. A Transcript of this morning’s appearance be obtained and marked as Exhibit 1 in the proceedings and provided to the Applicant.

2. Upon receipt of Exhibit 1, the Applicant has leave to provide a copy of the same to the Respondent.

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 & Rattana 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 3605 of 2019

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

Applicant

And

Ms Rattana

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. I do not have any difficulty making the orders sought in relation to injunctive relief restraining the mother from leaving Australia and orders intended to ensure that the children do not leave Australia and that their names are placed on the watch list.

2. I am satisfied that it is appropriate that those orders are made despite the Respondent not having been served with the Application in Form 2.  I intend to make an order that the Applicant has liberty to apply for the urgent relisting of the matter as soon as service is effected; what I have in mind is that, once service is effected, the Applicant notify my Associate by email and, as soon as I am made aware of service having been effected, I will be able to allocate an urgent return date and have that notified so that the Respondent can then be also told of that date.  I will just bring the matter on as soon as I can, given the requirement under the Rules to ensure that any orders made without notice are as limited in time as possible.

3. Of those matters that are set out in Rule 5.12 about which an Applicant must satisfy the Court in seeking that an interim order be made without notice to the Respondent:  I am satisfied that, given the nature of the Application (being an application in which the Applicant’s Central Authority seeks a return order for two children to New Zealand on the basis of a prima facie case that they were, prior to coming to Australia for holiday purposes only, habitually resident in New Zealand) that it is more appropriate that I make interlocutory orders of an injunctive nature restraining the mother from causing the children to leave Australia than shortening the time for service; I note Ms Fitzgibbon’s information from the bar table that service has attempted to be effected and that attempts will continue to effect service on the Respondent.

4. I accept that the Applicant seeks simply to ensure that, until service is effected, the children are not removed from Australia and the process commenced by the Application in Form 2 is not frustrated.

5. Of those other matters listed in Rule 5.12(b) – many of which are not relevant to the current Application – I consider that it is unlikely that there would be any hardship, danger or prejudice to the Respondent or a child if I make interim orders of an injunctive nature and accord to the Applicant liberty to apply on short notice for the allocation of a hearing date: particularly in circumstances where, as soon as I am made aware that service has been effected, I will list the matter with urgency before myself so that the Respondent has the opportunity to be heard in relation to the interim orders made without notice to her.

6. For those reasons, then, I will make the orders.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 12 April 2019.

Associate:     

Date:              12 April 2019