Department of Child Safety, Youth and Women and Shelter

[2019] FamCA 938

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF CHILD SAFETY, YOUTH & WOMEN & SHELTER [2019] FamCA 938

FAMILY LAW – CHILD ABDUCTION – Child brought to Australia – Application 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 & Women

RESPONDENT: Mr Shelter

FILE NUMBER: BRC 14664 of 2019

DATE DELIVERED: 6 December 2019

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 6 December 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Clowes, McInnes Wilson

SOLICITOR FOR THE RESPONDENT: Ms Wild, Go To Court Lawyers

Orders

IT IS ORDERED BY CONSENT UNTIL FURTHER ORDER THAT

1. The Respondent Father, Mr Shelter, born … 1991 (“Respondent Father”) be restrained and an injunction issue, restraining him or any other person from removing, or attempting to remove the child, X, a female born … 2014 (“the child”) from the Commonwealth of Australia.

2. The Respondent Father, be restrained and an injunction issue, restraining him from changing the child’s usual day to day residence from the premises where he and the child are currently residing, namely, B Street, Suburb C 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 Shelter, born … 1991 and the child, X, a female born … 2014 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 child, X, a female born … 2014.

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.

IT IS DIRECTED THAT

1. The Application in Form 2 is listed for hearing before Justice Hogan at 10.00 am on 20 December 2019.

AND IT IS DIRECTED BY CONSENT THAT

1. The Respondent Father file and serve a Notice of Address for Service by no later than 4.00 pm on 6 December 2019.

2. The Respondent Father file and serve a Form 2A Answer and Cross-Application by no later than 4.00 pm on 10 December 2019.

3. 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 12 December 2019.

4. 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 17 December 2019.

5. 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 18 December 2019 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)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

(B)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.

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 & Women & Shelter 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 14664 of 2019

Department of Child Safety, Youth & Women

Applicant

And

Mr Shelter

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The parties have reached agreement today in relation to some interim orders and also in relation to Directions to be made to ensure that the matter is ready to proceed for final hearing before me on 20 December 2019.  This agreement is arrived at in the context of the following information, which I intend briefly to summarise for the purpose of providing short Reasons in support of the decision I have arrived at that the interim orders sought to be made by consent are appropriate in the circumstances of the case and are orders that properly should be made.

2. By Application in Form 2 filed on 2 December 2019, the Director-General, 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 the child, X, born in 2014 in Australia. The final order sought is for the return of X to New Zealand.

3. The requesting Applicant under the Convention is X’s mother, Ms D, who was born in City E, New Zealand.  The Respondent to the Application is X’s father, Ms Shelter, who was born in New South Wales in Australia. 

4. According to the evidence before me at this stage, the mother and the Respondent started a relationship in Australia when she was about 17 years of age and he was about 21 years of age.  They became engaged in about June 2013 and married in Queensland in 2014.  According to the mother’s evidence, they and X moved to live in City E in early November 2017, at which time X was about three-and-a-half years of age.  The mother’s evidence is to the effect that, following their move to City E, the father obtained employment in the local area.  Further, in April of this year, X was, she says, enrolled at, and started to attend, a local primary school in City E.

5. The mother’s evidence is to the effect that she, the father and X have previously travelled as a family to Australia for holiday purposes on two occasions since moving to live in New Zealand in early November 2017.  Her evidence is to the effect that the first trip occurred in August 2018, and the second in July of this year. 

6. The evidence before me suggests that the parental relationship ended in August of this year, at which time X’s parents remained living separated under the same roof in their rented accommodation until about 25 September 2019, when the mother and X moved to stay with the mother’s sister.

7. The mother’s evidence is to the effect that she and the Respondent reached an agreement that X would live with her and spend time with him every weekend from Friday afternoon until Sunday evening.  Her evidence is to the effect that this agreement was verbal and is not reflected in any Court order made in New Zealand. 

8. On the mother’s evidence, X was spending time with her father on Friday, 15 November 2019, in accordance with this agreement.  She says that, when she spoke with X via FaceTime that evening, the background she observed caused her to think that X was calling her from the former matrimonial home in City E. 

9. The evidence before the Court is to the effect that the Respondent and X entered Australia on 16 November 2019. 

10. The mother’s evidence - summarised very broadly - is to the effect that, during text communications between herself and the Respondent that day, she learned that X had been removed from New Zealand, had travelled to Australia and was in Australia.

11. The mother’s evidence is to the effect that, from communications between herself and the Respondent that day, she inferred that the Respondent intended to stay in Australia and that X remain living in Australia with him. 

12. The mother’s evidence is to the effect that her observations during FaceTime communications with X since 16 November 2019 led her to conclude that X was then at the home of her paternal grandparents in a suburb of Brisbane.

13. It is in that context that the requesting mother signed an Application for a return order on 21 November 2019. 

14. Her evidence is, in effect, that the Respondent removed X from New Zealand without her prior knowledge or consent, and that she does not consent to X remaining in Australia thereafter.

15. Given this evidence summarised very broadly, I am persuaded that those necessary prerequisites which must be established by an Applicant in proceedings such as this have been established on a prima facie basis by the Applicant.   

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 6 December 2019.

Associate:     

Date:              6 December 2019