Department of Child Safety, Youth and Women and Tanoa

[2018] FamCA 644

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF CHILD SAFETY, YOUTH AND WOMEN & TANOA [2018] FamCA 644

FAMILY LAW – CHILD ABDUCTION – Hague Convention – Child brought to Australia – Application under the Hague Convention for the return of the child to New Zealand – prima facie case for return order established – interim order made.

Care of Children Act 2004 (NZ)
Family Law Act 1975 (Cth)
Family Law (Child Abduction Convention) Regulations 1986 (Cth)

APPLICANT: Department of Child Safety, Youth and Women

RESPONDENT: Ms Tanoa

FILE NUMBER: BRC 8893 of 2018

DATE DELIVERED: 20 August 2018

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 20 August 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Fitzgibbon, McInnes Wilson Lawyers

RESPONDENT: In person

Orders

IT IS ORDERED BY CONSENT UNTIL FURTHER ORDER THAT

1. The Respondent Mother, MS TANOA born … 1991, be restrained and an injunction issue, restraining her or any other person from removing, or attempting to remove the said child, X, a female, born … 2012 (the child) from the Commonwealth of Australia.

2. The Respondent Mother, MS TANOA born … 1991, be restrained and an injunction issue, restraining her from changing the child’s usual day to day residence from the premises where she 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 Mother, MS TANOA born … 1991, and the child, X, a female, born … 2012 on the Family Law Watchlist at all international departure points in Australia for a period of two (2) years.

5. The Respondent Mother, MS TANOA born … 1991, surrender forthwith to an officer of the Department of Child Safety, Youth and Women all current passports relating to herself and the child, X, a female, born … 2012.

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 28 September 2018.

AND IT IS FURTHER DIRECTED BY CONSENT THAT

1. The Respondent Mother file and serve a Notice of Address for Service by no later than 4.00 pm on 20 August 2018.

2. The Respondent Mother file and serve a Form 2A Answer and Cross-Application by no later than 4.00 pm on 5 September 2018.

3. The Respondent Mother file and serve any affidavits of evidence in chief to be relied upon at the hearing by no later than 4.00 pm on 5 September 2018.

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 19 September 2018.

AND IT IS FURTHER DIRECTED THAT

1. 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.

2. 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 24 September 2018 and notify the Case Co-ordinator of such request.

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.

(C)The Court today provided the Respondent with an explanation about process and procedure in discharge of the obligations imposed by Re F: Litigants in Person Guidelines (2001) FLC 93-072.

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 & Tanoa 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 8893 of 2018

Department of Child Safety, Youth and Women

Applicant

And

Ms Tanoa

Respondent

EXTEMPORE REASONS FOR JUDGMENT

1. The parties have reached agreement in relation to some interim orders and also some directions to ensure that the matter is ready to proceed for final hearing before me on 28 September of this year. 

2. They arrived at that agreement against a background of the following information, which I intend to summarise briefly for the purpose of providing short Reasons in support of the decision I have arrived at that the orders, by way of interim order sought to be made by consent, are appropriate in the circumstances of this case and are orders that should be made.

3. By Application in Form 2 filed on 7 August 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 applies for interim and final orders with respect to six year old X, who was born in 2012.

4. The requesting Applicant under the Convention is the children’s father, Mr D, who was born in 1989 and is a New Zealand national.  The Respondent to the Application (who appears on her own behalf this morning) is Ms Tanoa who was born in 1991 and is also a New Zealand national.  She is the child’s mother. 

5. The evidence before the Court establishes that the child and the Respondent are currently living in an outer suburb of Brisbane.  The allegation contained within the Form 2 Application, as constituted by the affidavits and statements that compile it, is that the Respondent caused the child to be removed from New Zealand without her father’s knowledge and wrongfully removed to, and thereafter retained in, Australia after entering this country on 7 February 2018. 

6. The background relevant circumstances may be summarised as follows. 

7. The moving father is named on the child’s birth certificate as her father.  Orders made (I think, by consent) by the appropriate Court in New Zealand on 22 July 2015 provided, in summary, that the child live with her mother and spend time with her father each fortnight from 9.00 am Saturday to 4.00 pm Sunday.  A number of other orders described as “conditions of the order” were also made.  The order also reflects the parties’ agreement for the child to travel overseas with each parent:  and the basis of that is said to have been that return tickets and contact numbers are provided, that a full itinerary is provided, that the duration of the trip not be longer than three weeks and that both parties be otherwise restrained from removing the child from New Zealand without the written consent of the other.

8. On the father’s evidence, he spent more time with the child than was prescribed by the Order.  As conveyed to the author of a report prepared at the direction of the Court in New Zealand and directed to a Family Court Registrar (dated 1 March 2017), the Respondent’s assertion (at least during that interview on 28 February 2017) was to the effect that the child spent time with her father – who was said to be largely consistent with his interaction with her – every second weekend.  Resolution of such an issue is, of course, not possible at this stage of the proceedings.

9. It appears, then, that, chronologically speaking, the parties – or, at least, I think instigated by the child’s father – applied to the New Zealand Court in about November 2016 to remove a condition which had earlier attached to an earlier order in relation to the prohibition of overseas travel for the child, so as to remove that condition to enable her to travel outside of New Zealand for a holiday.  It appears from the material before the Court at present that both of the child’s parents agreed to the removal of that condition. 

10. On 22 November 2016, an order was made (I think by Judge Parsons in the New Zealand Court) for the appointment of the equivalent of, I think, an Independent Children's Lawyer, to make certain inquiries.  The report was ordered to be prepared by the lawyer, Mr F, who it seems complied with that order by producing a report dated 1 March 2017 directed to the Court.  This forms part of the material currently before me.  It appears from this document that the Respondent was spoken to by Mr F on 28 February 2017.  According to the contents of the Report, at that time she evidenced that she had no intention to move from her then evidence in Tauranga in New Zealand.  The Report was supportive of the revocation or discharge of what is described as a non-removal order. 

11. Consequently, then, on 6 March 2017, an order was made discharging the then existing removal order from an order made on 11 February 2014.  It is immediately apparent, of course, that this the order (namely, 11 February 2014) predated the parenting order made, I think, by consent between the parents on 22 July 2015.

12. In any event, it appears that the child’s father was incarcerated in New Zealand in or around June or July 2017.  On the evidence before the Court, his sentence was one of two years and seven months imprisonment for offences of burglary, assault and a breach of a protection order.  On the evidence before the Court to date, the child last interacted with her father on around 21 July 2017. 

13. It appears that the father subsequently became aware – through, it seems, communication reported to him by his mother – of the Respondent’s intention to move with the child to Australia.  The documents before the Court at present include an application for a “Request for Border Alert” executed by the father on 2 February 2018.  It appears that that request was not sufficiently processed to prevent the mother, or more importantly, the child, from leaving New Zealand on 7 February 2018 and entering this country that day. 

14. It appears from the material before the Court that the father signed an Application seeking the return of the child to New Zealand, the place of her habitual residence prior to her removal (at least on a prima facie basis) on 28 May 2018.  The Application comes before me today for a first return date for listing for final hearing. 

15. The other evidence that is relevant to a consideration, even on an interim basis, of the appropriateness of the orders sought to be made by consent is the fact that the evidence from the father establishes that he asserts that he was eligible for parole in June of this year.  At that time he was undertaking some type of rehabilitation program, but expected to be released from incarceration, subject to parole conditions, after he completed that sometime this year. 

16. It is against that background, then, at this stage, that I am persuaded that those necessary prerequisites have been established on a prima facie basis by the Applicant to provide the appropriate basis for the making of an order sought to be made by consent. 

17. Consequently, I make orders in terms of the Minute provided to me, which I will initial and place with the papers.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 20 August 2018.

Associate: 

Date:              20 August 2018