DEPARTMENT OF CHILD SAFETY, YOUTH & WOMEN & COMAR

[2020] FamCA 556

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF CHILD SAFETY, YOUTH & WOMEN & COMAR [2020] FamCA 556

FAMILY LAW – ENFORCEMENT OF ORDERS – Where an order was made for the return of three children to Colombia – Where the State Central Authority urgently applies for further orders necessary to facilitate the children’s return.

Australian Passports Act 2005 (Cth)
Family Law Act 1975 (Cth)
Family Law (Child Abduction Convention) Regulations 1986 (Cth)

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

RESPONDENT: Ms Comar

INTERVENOR: Mr Comar

FILE NUMBER: BRC 6714 of 2019

DATE DELIVERED: 13 July 2020

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Carew J

HEARING DATE: 10 July 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Fitzgibbon, McInnes Wilson Lawyers

FOR THE RESPONDENT: No appearance

SOLICITOR FOR THE INTERVENOR: Ms Davies, Barry Nilsson Lawyers

Order made 10 July 2020

1. That pursuant to s 11(1)(b)(i) of the Australian Passports Act 2005 (Cth) the children, X born … 2009, Y born … 2012 and Z born … 2017 be permitted to have an Australian travel document (including passport), and these Australian travel documents be provided to the Father in the absence of the Mother’s consent.

2. The Respondent Mother, Ms Comar, cause the children, X born … 2009, Y born … 2012 and Z born … 2017 (“the children”) to be delivered to the Father or Ms TT Comar by midday on 14 July 2020 at the office of the Department of Child Safety, Youth and Women at VV Town in the State of Queensland.

3. A warrant (in accordance with Form 2C of the Family Law Child Abduction Convention Regulations 1986 (Cth)) issue and lie in the Registry of the Family Court of Australia at Brisbane authorising and directing the Marshall of the Family Court and the Commissioner and all federal agents of the Australian Federal Police and officers of the Queensland Police Service and all other police officers in all other States and Territories in the Commonwealth of Australia to take possession of the children, X born … 2009, Y born … 2012 and Z born …2017 (“the children”) and deliver the said children to the Father, Mr Comar or Ms TT Comar at WW Street, Brisbane in the State of Queensland (or such other place as can be arranged) and that for the purposes of the exercise of the foregoing powers to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place where the said children may be or where there is any reasonable cause to believe the said children may be.

4. That in the event the Mother fails to comply with Order 2 above, then the Applicant will contact the Brisbane Registry of the Family Court of Australia to request that the warrant in Order 3 be acted upon by the Marshall of the Family Court and the Commissioner and all federal agents of the Australian Federal Police and officers of the Queensland Police Service and all other police officers in all other States and Territories in the Commonwealth of Australia.

5. The intervenor’s Response to an Application in a Case filed 8 July 2020 is dismissed.

NOTATION

A. It is noted that the intervenor was unable to establish that the Response to an Application in a Case filed 8 July 2020 had been served on the respondent and in those circumstances elected not to press for the orders sought therein.

B. Section 121 of the Family Law Act 1975 (Cth) which provides as follows:

Restriction on publication of court proceedings

(1)A person who publishes in a newspaper or periodical publication, by radio broadcast or television or by other electronic means, or otherwise disseminates to the public or to a section of the public by any means, any account of any proceedings, or of any part of any proceedings, under this Act that identifies:

(a)       a party to the proceedings;

(b)       a person who is related to, or associated with, a party to the proceedings or is, or is alleged to be, in any other way concerned in the matter to which the proceedings relate; or

(c)       a witness in the proceedings;

commits an offence punishable, upon conviction by imprisonment for a period not exceeding one year.

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 & Comar 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 6714 of 2019

Director-General Department of Child Safety, Youth & Women

Applicant

And

Ms Comar

Respondent

And

Mr Comar
Intervenor

REASONS FOR JUDGMENT

1. On 23 June 2020, I made a return order[1] pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”) requiring three children, X born in 2009, Y born in 2012, and Z born in 2017 (“the children”) to be returned to Columbia.

   [1] As defined in regulation 2 of the Family Law (Child Abduction Convention) Regulations 1986 (Cth).

2. The return order granted the Director-General, Department of Child Safety, Youth and Women (“the State Central Authority”) liberty to apply on short notice to seek any further orders necessary to facilitate and ensure the children’s return.

3. On 7 July 2020, the State Central Authority filed an Application in a Case and it was listed for hearing on Friday 10 July 2020 at 2.15pm. Having been satisfied that both parents had been served with the application and supporting material, I made an order that afternoon and indicated that I would provide my reasons the following Monday and these are my reasons.

4. The father had filed a Response to the Application in a Case and an affidavit of himself, and the mother emailed an affidavit of herself to the Court which was filed by leave, without objection. The mother did not attend the hearing, which proceeded by way of Microsoft Teams, a web based platform, given the ongoing health restrictions relating to the COVID-19 pandemic. The mother was provided with all necessary information to join the hearing and when she failed to do so attempts were made to contact her by telephoning the mobile telephone number she had included on the front of her affidavit. The telephone was not answered.

5. In order to give effect to the return order, the children’s parents, with the assistance of the State Central Authority, were required to forthwith do all acts and things necessary to obtain a new passport for the child, X. Upon re-issue of the passport the father was required to forthwith make any application necessary to secure appropriate visas for the children to enable them to re-enter Colombia.

6. It was my understanding at the time I made the return order that the State Central Authority already had possession of the passports for the two other children as reflected in the return order which authorised the State Central Authority to release the passports so as to facilitate the children’s return to Colombia. Inexplicably, it seems the usual practice of securing the children’s passports was not followed in this case by the State Central Authority.

7. It was not until the 26 June 2020 i.e. three days after the return order was made, that Ms Fitzgibbon, the legal representative for the State Central Authority, contacted the mother’s then legal representatives, to request the passports and was informed that the mother held them. Ms Fitzgibbon says that she was informed by the mother’s former legal representatives that the mother would be requested to send the passports to Ms Fitzgibbon’s office.

8. On 1 July 2020, the mother’s lawyer informed Ms Fitzgibbon that she had ceased to act for the mother. No passports have been received by Ms Fitzgibbon or by the State Central Authority.

9. Contrary to the information provided by the mother’s former lawyer to Ms Fitzgibbon on 26 June 2020, i.e. that the mother held the passports, the mother in her affidavit states that she posted the children’s passports to the State Central Authority on 20 May 2020. Despite repeated requests by Ms Fitzgibbons on 2 and 3 July 2020, the mother failed to provide any details about when she posted the passports or to whom the envelope was addressed or what tracking number was allocated to the postage. If the passports were posted they now seem to be lost.

10. On 25 June 2020, the father’s lawyer sent correspondence to the mother’s then lawyer enclosing an application for a new passport for the child, X and requesting that the mother:

    a)Sign and witness as parent 2;

    b)Have X sign;

    c)Provide two passport photos of X;

    d)Provide X’s expired passport; and

    e)Send X’s passport application to their office by Express Post by no later than 30 June 2020.

    The correspondence also enclosed, as required by the return order, evidence from the Colombian Consulate by way of letter dated 23 June 2020 guaranteeing the children entry to Colombia. Notice was also given that the father would be travelling to Australia and, after completing the required quarantine period (in view of COVID-19 health restrictions), he anticipated departing Australia with the children on 14 July 2020. The father arrived in Australia on 30 June 2020.

11. On 2 July 2020, the mother indicated in correspondence that there was an error on the passport application and she refused to sign it. It is unclear from the material what the error was but I note on 3 July 2020, the father’s lawyer sent further correspondence to the mother enclosing an amended passport application and requesting that the mother deliver the completed passport application, photos, and passports to the office of the Department of Child Safety, Youth and Women in P Town by 4pm that day, a distance of some three hours drive from the mother’s residence. In my view, that was an unreasonable request to make in the circumstances.

12. In any event, the mother did not deliver the passport application as requested or at all. She says in her affidavit that she was “advised” not to undertake the six hour round trip in her “current emotional state”. The mother does not disclose who gave her that advice and why she was unable to arrange delivery on another day with the assistance of family members who live close by. The mother says that she posted the completed passport application but does not say when she did so, nor does she provide any information by which the postage might be tracked. The passport application had not been received by 10 July 2020.

13. The application by the State Central Authority sought an order pursuant to s 11(1)(b) of the Australian Passport Act 2005 (Cth) which permits a travel document (in this case passports) to be issued without a parent’s consent if an order is made by a Commonwealth Court to that effect. In addition, an order was sought that the mother deliver the children to the father or the paternal grandmother in Brisbane in order to facilitate obtaining all necessary passports and thereafter the children’s prompt departure with the father to Colombia.

14. I must say I was somewhat reticent to order that the children be delivered to the father when no precise date for the children’s departure was known. However, I was persuaded to do so in circumstances where the new passport for X is not able to be obtained unless she signs it and there is a passport photograph included with the application. Additionally, as the other children’s passports seem to be lost they too will need new passports and current passport photographs. The mother’s failure to provide any relevant information to the State Central Authority that would enable them to track the passports and passport application which she says she posted, leaves me with a firm impression that the mother will not be co-operative in assisting the children’s departure in accordance with the return order. The father is unable to make firm plans until he has obtained the passports. Once the necessary applications for new passports are lodged with the Australian Passports Office the passports will issue promptly i.e. in a day or two. The father will then be able to book flights and request permission from the Australian Department of Home Affairs to depart Australia with the children. He cannot make that request until he has booked flights. The flights from Australia to Colombia will be via City UU, USA and the Colombian Consulate in City UU have offered the father every assistance. Given the difficulty already experienced with the delivery of the passports and new passport application, and the additional complication of the apparent loss of the children’s passports, it seems that further delay will be experienced if reliance has to be placed upon the mother attending to the matters which require completion.

15. The mother indicated in her affidavit that she will not deliver the children to Brisbane for two reasons. Firstly, because of the anticipated emotional trauma the children will experience, and secondly because she has been “advised” that it is not safe for her to do so in her “current emotional state”. It is regrettable that the children will not be assisted in the transition to the father by their mother. Her decision will make their situation more difficult. The order that issued on 10 July 2020 requires the mother to cause the children to be delivered to the Department of Child Safety, Youth and Women in VV Town where the father and/or his mother will be waiting. VV Town is about a four hour drive from where the mother lives. The Department in VV Town apparently have considerable experience with Hague abduction matters and anticipate being able to assist in the children’s transition.

16. The father had been having regular communication with the children or at least X but that stopped abruptly on 30 June 2020 when the father says he was blocked from communicating with X. The mother and children have historically spent significant time living with the paternal grandmother and at times the children have lived with the paternal grandmother when the mother has been in hospital. Since a falling out between the mother and paternal grandmother in about March 2019, the mother has not permitted the children to have any contact with the paternal grandmother. She is nevertheless someone with whom the children have historically had a very close relationship.

17. I can only hope that the mother will put aside her disappointment and opposition to the return order for the sake of the children and comply with the order made. If not, the warrant that issued on 10 July 2020 will be executed and that will involve the police retrieving the children.  I would expect that the police will be accompanied by an appropriate person or persons from the Department to assist in the removal. If the mother does not arrange for the children to be delivered to VV Town, the State Central Authority and the father proposed that the police deliver the children to the father/paternal grandmother in Brisbane and while that may be possible, I have made a more general provision to enable suitable arrangements to be made after consultation between the police, the State Central Authority and the father.

18. As mentioned above, the father filed a Response which sought orders including the following:

    That the Mother forthwith remove and direct her agents to remove from [social media site 1], [social media site 2] and any other social media website all references to these proceedings BRC 6714/2019 including but not limited to all references to:

    (a)the Mother’s name,

    (b)the Father’s name,

    (c)the children’s names, birth dates and ages,

    (d)photos of the children, Mother, and Father; and

    (e)all references to judicial officers of this Court in respect of decisions or determinations they are said to have made or not made;

    (f)all references to any and all travel details for the Father and the children.

19. The affidavit in support of the Response annexes various documents said to be from various social media sites. Photographs of the mother and children and the children’s names are published, together with details of the proceedings in this Court. On their face, the documents establish a prima facie case that s 121 of the Family Law Act 1975 (Cth) (“the Act”) has been breached. Section 121 relevantly provides:

    (1)A person who publishes in a newspaper or periodical publication, by radio broadcast or television or by other electronic means, or otherwise disseminates to the public or to a section of the public by any means, any account of any proceedings, or of any part of any proceedings, under this Act that identifies:

    (a)a party to the proceedings;

    (b)a person who is related to, or associated with, a party to the proceedings or is, or is alleged to be, in any other way concerned in the matter to which the proceedings relate; or

    (c)a witness in the proceedings;

    commits an offence punishable, upon conviction by imprisonment for a period not exceeding one year.

20. This is a very serious matter. The main purpose of the prohibition against publication is to protect children. While the children are certainly at the centre of a private dispute between their parents, the social media posts place the children in the midst of a now public dispute. The content of the media posts not only contain false and misleading material, they incorrectly give the impression that the Court has made a determination of the parenting dispute between the parents. It has not.

21. However, as the father could not establish service of the Response and supporting material upon the mother he elected not to press the orders sought in the Response and consented to its dismissal.

22. That does not mean that action might not be taken at a later time against the mother and others who breach the provisions of s 121 of the Act. Indeed, the Court of its own motion may refer the matter to the
    Director of Public Prosecutions for consideration of whether prosecution proceedings should be commenced.    

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 13 July 2020.

Associate: 

Date:  13.07.2020