Department of Child Safety, Youth and Women and Townsend and Anor

[2018] FamCA 480

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF CHILD SAFETY, YOUTH AND WOMEN & TOWNSEND & ANOR [2018] FamCA 480

FAMILY LAW – CHILD ABDUCTION – Child brought to Australia – Hague Convention – Application under the Hague Convention for the return of the child to the United Kingdom – Prima face case for return order established – interim order made

Family Law (Child Abduction Convention) Regulations 1986 (Cth)
Children Act 1989 (UK)
Family Law Act 1975 (Cth)

APPLICANT: Department of Child Safety, Youth and Women

1st RESPONDENT: Ms Townsend

2nd RESPONDENT: Mr Slesser

FILE NUMBER: BRC 6362 of 2018

DATE DELIVERED: 25 June 2018

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 25 June 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Fitzgibbon

1ST RESPONDENT: In person

2ND RESPONDENT: In person

Orders

IT IS ORDERED BY CONSENT UNTIL FURTHER ORDER THAT

1. The Respondent mother, Ms Townsend born …1974 be restrained and an injunction issue, restraining her or any other person from removing, or attempting to remove the child, X, a female, born … 2005 from the Commonwealth of Australia.

2. The Respondent father, Mr Slesser born … 1972, be restrained and an injunction issue, restraining him or any other person from removing, or attempting to remove the child, X, a female, born … 2005 from the Commonwealth of Australia

3. The Respondent mother, Ms Townsend born ... 1974 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.

4. The Respondent father, Mr Slesser born ... 1972, 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.

5. 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.

6. The Commissioner of the Australian Federal Police place the names of the Respondent mother, Ms Townsend born ... 1974, the Respondent father, Mr Slesser born ... 1972 and the child, X, a female, born ... 2005 on the Family Law Watchlist at all international departure points in Australia for a period of two (2) years.

7. The Respondent mother, Ms Townsend born ... 1974, 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 ... 2005.

8. The Respondent father, Mr Slesser born ... 1972, 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 ... 2005.

9. 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 female, born ... 2005, with an interview to occur at the Family Court of Australia, Brisbane on 24 July 2018 at a time to be advised:

   (a)whether the child objects to being returned to the United Kingdom;

   (b)whether any objection by the child to being returned to the United Kingdom 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 her views.

10. 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 the United Kingdom, Ms D Townsend (the Applicant maternal grandmother) and any lawyer or legal representative or other professions engaged on behalf of the Applicant maternal grandmother, or the Applicant’s behalf, in relation to the Application.

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

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

13. 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 Respondents do all things necessary to ensure that the child attends at Child Dispute Services, Family Court of Australia, Brisbane Registry on 24 July 2018 at the nominated time for the purpose of the interview with the Family Consultant.

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

IT IS DIRECTED THAT

1. The Application in Form 2 is listed for hearing before Justice Carew at 10.00 am on 7 August 2018.

AND IT IS 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 25 June 2018.

2. The Respondent father file and serve a Notice of Address for Service by no later than 4.00 pm on 25 June 2018.

3. The Respondent mother file and serve a Form 2A Answer and Cross-Application by no later than 4.00 pm on 12 July 2018.

4. The Respondent father file and serve a Form 2A Answer and Cross-Application by no later than 4.00 pm on 12 July 2018.

5. 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 12 July 2018.

6. 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 July 2018.

7. 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 July 2018.

8. 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 2 August 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 Court has informed the parties today that it is expected that the report prepared by the Family Consultant will be completed by 31 July 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.

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 & Townsend and Anor 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 6362 of 2018

Department of Child Safety, Youth and Women

Applicant

And

Ms Townsend

1^ST Respondent

And

Mr Slesser

2^ND Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. By Application in Form 2 filed on 11 June 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 the child, X, born in 2005.  The child was born in the United Kingdom.  On the evidence before the Court, the Second Respondent is not named on her birth certificate as her father.  The child is currently 13 years and four months of age.  I should also record that the child is also known on occasion as X.

2. The requesting Applicant under the Convention is the child’s maternal grandmother, Ms D Townsend, who lives in the United Kingdom.  As a consequence of an order made on 1 February 2006, pursuant to the provisions of the Children Act 1989 (UK), the child and her brother, Y (who was born in 2003 and is nearly 15 years of age) have lived with their maternal grandmother.  The order granted to the maternal grandmother parental responsibility in relation to each child.

3. It is contended, and I accept on a prima facie basis, that this confers rights of custody to the maternal grandmother, which she was exercising at the relevant time.  It was contended that she had not relinquished the same at the relevant time.  It is clear from a perusal of the material before the Court at this stage that certain undertakings were provided to the Court in the United Kingdom by each of the Respondents: the terms of such undertakings are cited in the order made 1 February 2006.

4. It is relevant, I think, to note that the order of 1 February 2006 was made when X had had her first birthday. 

5. The evidence before the Court from the maternal grandmother is that she and the First Respondent, Ms Townsend, rebuilt their relationship from in or about 2012.  Her evidence is that, as a result of that, she permitted the children (the child the subject of the Application and her brother Y) to spend time with their mother.  She also says that, in the exercise of her parental responsibility, she agreed with the mother for the child, the subject of this Application, to travel with her mother to Australia to visit extended family.

6. The maternal grandmother’s evidence is to the effect that she did not consent for the child to remain living in Australia thereafter – rather, she simply consented to the child leaving the United Kingdom for a short trip to visit her brother, Z, who lives with Mr Slesser.  She also says she arrived at that agreement on the condition that X not be left alone with Mr Slesser. 

7. It seems, on the evidence before the Court to date, that Ms Townsend and the child left the United Kingdom on 9 February 2018.  They entered Australia on 10 February 2018.

8. According to the evidence from the maternal grandmother, the child was to return to the United Kingdom on 2 March 2018.  She provides evidence of an email, I think sent on 16 February 2018 (or thereabouts, at least), which included suggestions that the mother expected the child to return to the United Kingdom on 19 February – which seems to be the day the school term in the United Kingdom commenced.

9. There is also evidence, of an email sent 16 February 2018 from Ms Townsend to the maternal grandmother, by which Ms Townsend told her mother that the child’s older brother was still unwell and was unable to accompany the child on the flight, which had been booked for the Saturday and which would have permitted her to return to school on 19 February 2019 (as planned).  The email further informed the maternal grandmother that the child would be returning with her mother on the flight on 1 March 2018.

10. The maternal grandmother’s evidence is to the effect that, on 26 February 2018, the child telephoned her.  She says she was told by the child that the Respondents had told her that she was not returning to the United Kingdom.  The maternal grandmother says she spoke to the mother, who told her that the child was not returning to the United Kingdom and that she was returning to collect Y and bring him to Australia. 

11. On the maternal grandmother’s evidence, as at 5 June 2018, the last communication she had with the child the subject of this Application occurred on 26 February 2018. 

12. The evidence before the Court is to the effect that Ms Townsend entered the United Kingdom without the child on 3 March 2018. She was, it seems, at first arrested but then released without charge. 

13. On 10 March 2018, the maternal grandmother contacted the United Kingdom Central Authority to authorise that entity to act on her behalf and on 24 April 2018 she signed an Application for return.

14. The maternal grandmother’s evidence, in summary, is in effect that the child was habitually resident in the United Kingdom at the time she left there temporarily for a holiday and, in breach of the agreement between herself and Ms Townsend, the child has remained in Australia.  It is alleged, therefore, that the child was wrongfully retained in Australia on 3 March 2018, the date on which she was due to leave this country to return to the United Kingdom.

15. I accept that the evidence before the Court at this stage establishes a prima facie case, by way of expert evidence, that the maternal grandmother has rights of custody under the Children Act 1989 (UK).  I also accept, on an interim basis, that there is an appropriate basis for the making of the orders that are agreed as between the parties to ensure that the matter can be heard by the Court on a final basis on the date I have allocated to it. 

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 25 June 2018.

Associate:     

Date:              25 June 2015