DEPARTMENT OF CHILD SAFETY, YOUTH AND WOMEN & FULTON

[2018] FamCA 529

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF CHILD SAFETY, YOUTH AND WOMEN & FULTON [2018] FamCA 529

FAMILY LAW – CHILD ABDUCTION – Child brought to Australia – Hague Convention – Application under the Hague Convention for the return of the child to New Zealand – Prima facie case for return order established – request for a Regulation 26 report for the Court –  interim order made.

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

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

RESPONDENT: Ms Fulton

FILE NUMBER: BRC 7348 of 2018

DATE DELIVERED: 13 July 2018

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 13 July 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Fitzgibbon, McInnes Wilson Lawyers

SOLICITOR FOR THE RESPONDENT: Mr Galloway, Journey Family Lawyers

Orders

IT IS ORDERED BY CONSENT UNTIL FURTHER ORDER THAT

1. The Respondent Mother, Ms Fulton, born … 1973, (the Respondent) be restrained and an injunction issue, restraining her or any other person from removing, or attempting to remove the children, X, a male, born … 2006 and Y, a male, born … 2008 (the children) from the Commonwealth of Australia.

2. The Respondent be restrained and an injunction issue, restraining her from changing the children’s usual day to day residence from the premises where she and the children 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 Fulton, born … 1973 and the children, X, a male, born … 2006 and Y, a male, born … 2008 on the Family Law Watchlist at all international departure points in Australia for a period of two (2) years.

5. The Respondent surrender forthwith to an officer of the Department of Child Safety, Youth and Women all current passports relating to herself and the children.

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.

AND IT IS FURTHER ORDERED THAT

1. 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 children, X, a male, born … 2006 and Y, a male, born … 2008, with an interview to occur at Child Dispute Services, Family Court of Australia, Brisbane at 9.00 am on 3 August 2018:

   (a)whether the children object to being returned to New Zealand;

   (b)whether any objection by the children to being returned to New Zealand shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes;  and

   (c)whether the children have attained an age and degree of maturity at which it is appropriate to take account of their views.

2. 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 New Zealand, the father, Mr Fulton, born … 1971 and any lawyer or legal representative or other professions engaged on behalf of the father, or the Applicant’s behalf, in relation to the Application.

3. The Respondent do all things necessary to ensure that the children attend at Child Dispute Services, Family Court of Australia, Brisbane Registry on 3 August 2018 at 9.00 am.

IT IS DIRECTED THAT

1. The Application in Form 2 is listed for hearing before Justice Hogan at 10.00 am on 24 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 20 July 2018.

2. The Respondent Mother file and serve a Form 2A Answer and Cross-Application by no later than 4.00 pm on 31 July 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 31 July 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 16 August 2018.

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 20 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)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 Respondent has today provided the Court with the following email address, …, to which service can be effected on the Respondent and the Rules which otherwise relate to the manner by which service is to be effected are otherwise dispensed with.

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 & Fulton 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 7348 of 2018

Department of Child Safety, Youth and Women

Applicant

And

Ms Fulton

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. By Application in Form 2, filed on 3 July 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 children, X, a male, born in 2006 and Y, a male, born in 2008.

2. The requesting Applicant, under the Convention, is the children’s father, Mr Fulton, born in 1971. He lives in City D and is a New Zealand national. 

3. The Respondent to the Application is the children’s mother, Ms Fulton, who was born in 1973 and who is also a New Zealand national.  It appears, from information provided by Ms Fitzgibbon (who appears on behalf of the Applicant) that the mother and children currently live at B Street, Suburb C, in Queensland. 

4. The evidence before the Court at this stage, as provided by the children’s father, is that he was living with the mother in a de facto relationship, and as a de facto partner, prior to and during the period beginning with the conception of each child and encompassing their birth; therefore, on the basis of the expert evidence this stage, he is a guardian of the children, pursuant to the applicable sections of the Care Of Children Act 2004 (NZ). 

5. The allegation contained within the Form 2 Application before the Court is to the effect that the mother caused the children to be wrongfully removed from New Zealand on 22 April 2018; that such removal was wrongful in that it was without the consent or knowledge of the father and that, thereafter, she has wrongfully retained the children in Australia.

6. The evidence which, at this stage, underpins those assertions may be summarised as follows. 

7. It appears, as I have already said, that both parents were born in New Zealand.  It appears they later moved to live in Australia.  It seems they commenced a relationship in about 2003.  The children were born in Australia in 2006 and 2008 respectively.  The father is named as the father of each child on each of the children’s birth certificates.

8. The parents married in 2012 in Australia.  It seems they returned thereafter to New Zealand.  That occurred in 2013.  On the assertion from the bar table by Mr Galloway, who has only recently had the opportunity to take preliminary instructions, the return occurred in 2014.  No doubt the evidence before me at the final hearing of the matter will establish, with some accuracy, which of those is, in fact, correct.

9. In any event, it seems, on the evidence before the Court to date, that the parents separated in 2016.  They later engaged, it seems, in a family mediation in New Zealand at which, according to the father’s evidence, agreement was reached that the children would spend time with him each alternate weekend, on Thursday of an alternate week, for half of the school holidays; the time for the Christmas school holidays was to be taken in alternate week blocks.

10. On the father’s evidence, the parties engaged in a further mediation in April 2017, following – or at which – the mother’s desire to relocate the children to live in Australia formed part of the discussions.  The father’s evidence is to the effect that no agreement was reached about this; the agreement reached was that the parties would meet at a future time to discuss that issue.

11. The father’s evidence is that, on 18 March 2008, when he attended at the mother’s home to collect the children to spend time with him, there was a physical altercation.  His evidence is that the mother initiated that altercation; of course, there is no evidence from the mother at this stage in relation to that but, no doubt, as a result of the directions, the Court will receive her evidence about that incident.

12. The father’s assertion is that, after the mother complained to the police, he was charged and bailed on conditions which prevented him from contacting her other than to organise visits with the children.  He informs the Court that he intends to contest the charge he currently faces. 

13. It seems, from the evidence provided by the father that, sometime later in March, the children were left in his care whilst the mother travelled to Brisbane. His evidence is to the effect that the children spent time with him over the Easter weekend and during a week of the Easter school holiday period in April. 

14. The father’s evidence also includes the assertion that, on or about 3 April 2018, the mother’s home, in which she and the children had previously lived, was listed as available for rent. 

15. It seems that the children returned to the mother’s care on 20 April 2018. The father says there was no mention made of them travelling to Australia. 

16. On the evidence before the Court at present, the mother and children entered Australia on 22 April 2018 and, on 23 April 2018, the mother sent the father an email in which she asserted that she and the children no longer lived in New Zealand and that, due to recent events, it had come to light that she could leave with the children legally and return back to Australia. There was also further information about the mechanism by which the father could maintain communication with the children. 

17. The father’s evidence is to the effect that he spoke to the children on 24 April 2018 and was told they were staying with friends.  He says he has spoken with the children twice a week by either telephone and, I think, more recently by Skype since, I presume, 24 April 2018; on his understanding, the children have been enrolled in, and to have attended at, school in Australia.

18. The father signed an application seeking the return of the children on 29 May 2018. As I have already noted, the application for a return order was filed by or on behalf of the Central Authority on 3 July 2018, the Application having been signed by the appropriate person within the Department that day. 

19. It is within that context, then, that I have concluded that the evidence before the Court establishes, on a prima facie basis, those matters necessary to provide the foundation for the making of interim orders in the terms agreed between the parties (and as supplemented by those three orders which I have outlined on the record). It is for these reasons that I will make orders in terms of the proposed minute, which I will initial and place with the papers. 

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 13 July 2018.

Associate:

Date:              13 July 2018