Department of Child Safety, Youth and Women and Zakaria (No 2)

[2018] FamCA 1018

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF CHILD SAFETY, YOUTH AND WOMEN & ZAKARIA (NO. 2) [2018] FamCA 1018

FAMILY LAW – CHILD ABDUCTION – Discharge Of Order – where the Applicant has filed an Application in Form 2D seeking a discharge of orders – where all parties consent to the return order being discharged – order made discharging the return order

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

APPLICANT: Department of Child Safety, Youth and Women

RESPONDENT: Ms Zakaria

FILE NUMBER: BRC 8280 of 2018

DATE DELIVERED: 30 November 2018

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 30 November 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms N, McInnes Wilson Lawyers by telephone

THE RESPONDENT: In person by telephone

Orders

IT IS ORDERED BY CONSENT BY WAY OF FINAL ORDER THAT

1. The Order made on 11 September 2018 and varied on 21 September 2018 in respect of the children, X (a male) born … 2005 and Y (a male) born … 2010 be discharged.

2. The Commissioner of the Australian Federal Police and all federal agents of the Australian Federal Police remove the names of the Respondent Mother, Ms Zakaria born … 1978 and the children, X (a male) born … 2005 and Y (a male) born … 2010 from the Family Law Watchlist. 

3. Ms D, Department of Child Safety, Youth and Women or her nominee forthwith release all current passports relating to the Respondent Mother and the children to the Respondent Mother or her nominee.

IT IS DIRECTED THAT

1. By 4.00 pm on 7 December 2018:  the Applicant cause to be provided to the Court by email directed to … and copied to the Respondent, a copy of the communication received from the father referred to in paragraph 17 of the affidavit of Ms D filed 21 November 2018, which outlines that on 19 October 2018 the father confirmed in writing his support for the children, X (a male) born … 2005 and Y (a male) born … 2010 to remain living with the Respondent Mother in Australia.

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 & Zakaria 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 8280 of 2018

Department of Child Safety, Youth and Women

Applicant

And

Ms Zakaria

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. On 11 September 2018, I made an order for the return of the children, X (a male) born in 2005 and Y (a male) born in 2010, to New Zealand.  That order was amended by consent of the parties to the Application on 21 September 2018.  The amendment made that date was to extend the time for compliance with the order for the children to leave the Commonwealth of Australia. 

2. There is now before me an Application, in Form 2D, filed by the Applicant on 21 November 2018, seeking a discharge of the orders for return of the children to New Zealand.

3. The information before the Court establishes that the basis for the Application, and the basis upon which it is sought to discharge the return order, is that the children’s parents have reached agreement between themselves that the children will remain living with their mother in Australia. 

4. The reasons which underpin that are as set out in the Form 2D Application and the supporting affidavit of Ms D, which was also filed on 21 November 2018. 

5. Regulation 19A of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) prescribes the circumstances in which a Court may discharge a return order. Pursuant to subsection (2) of that Section, the Court may make an order discharging a return order only if it is satisfied of one of the prerequisites particularised in subparagraphs (a) through (d) of that subsection.

6. In the current case, I am satisfied that all the parties consent to the return order being discharged: that is, I am satisfied of the circumstances set out in Regulation 19A(2)(a) of the Family Law (Child Abduction Convention) Regulations 1986 (Cth), and, consequently, I am satisfied that the Court has power to make an order discharging the return order previously made.

7. I also take into account the requirements set out in Regulation 19A(3) of the relevant Regulations and note that I have had regard to s 111CE of the Family Law Act 1975 (Cth) in considering whether to make an order discharging the return order previously made.

8. For the reasons I have expressed, then, I am satisfied that the parties consent to the return order being discharged, and, consequently, I will make an order discharging the same.

9. I should also note that I have made such orders in reliance upon the direction earlier made that the Applicant, via Ms N, cause to be provided to the Court by email, into which the Respondent is copied, a copy of the communication from the father referred to in paragraph 17 of the affidavit of Ms D, which outlines that, on 19 October 2018, he confirmed in writing his support for the children to remain living with their mother in Australia. 

10. So, the order is made on the basis that a copy of that document, outlining the father’s confirmation of his agreement to the children remaining living in Australia, will be provided to the Court by no later than 4.00 pm next Friday.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 30 November 2018.

Associate:     

Date:              30 November 2018