Department of Communities, Child Safety and Disabilities and Jerry & Anor

[2012] FamCA 677

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF COMMUNITIES, CHILD SAFETY AND DISABILITIES & JERRY AND ANOR [2012] FamCA 677

FAMILY LAW - HAGUE - Where the Respondent paternal grandmother and the Respondent Father agree to the return of the child - Where the Court is satisfied that the Applicant Department has established the requirements for the making of a return Order under the Hague Convention

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

APPLICANT: Department of Communities, Child Safety and Disabilities

1st RESPONDENT: Ms Jerry

2nd RESPONDENT: Mr Kipa

FILE NUMBER: BRC 7037 of 2012

DATE DELIVERED: 14 August 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 14 August 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Crown Law

Orders

1. The child, H, born … November 2007, be returned to the country of New Zealand and for the purposes of giving effect to this Order:

   (a)       The said child leave the Commonwealth of Australia on or before 28 August 2012;

   (b)       The said child arrive in New Zealand on or before 28 August 2012;

   (c)       The said child and Respondent paternal grandmother, Ms Jerry, and the Respondent Father, Mr Kipa, born … 1988, be removed from the All Ports Watch Alert System by offers/agents of the Australian Federal Police upon receipt of a letter from an agent of the Department of Communities, Child Safety and Disability Services advising of the travel arrangements made for the said child to return to New Zealand from 12:00am on the date nominated for travel in the letter.

1. Pending the return of the said child to new Zealand, the Respondent paternal grandmother, Ms Jerry, and the Respondent Father, Mr Kipa, born 22 January 1988, be restrained and an injunction issue restraining them and any other person from removing, or attempting to remove, the said child, H, born … November 2007, from the Commonwealth of Australia.

2. Pending the return of the said child to New Zealand, the Respondent paternal grandmother, Ms Jerry, and the Respondent Father, Mr Kipar, born … 1988, be restrained and an injunction issue restraining them from changing the said child’s usual day to day residence from the premises where they and the said child are currently residing, namely Property G.

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 these Orders.

4. Pending the return of the said child to New Zealand, the Commissioner of the Australian Federal Police place the names of the Respondent paternal grandmother, Ms Jerry, and the Respondent Father, Mr Kipa, born … 1988, and the said child, H, born … November 2007, on the All Ports Watch Alert System at all international departure points in Australia.

5. The Respondent paternal grandmother, Ms Jerry, and the Respondent Father, Mr Kipa, born … 1988, pay all necessary expenses associated with the return of the said child to New Zealand, including the cost of the airfare and departure taxes, if any, for the child to travel from Town M to New Zealand, and in the even that the Respondent paternal grandmother, Ms Jerry, and the Respondent Father, Mr Kipa, refuses or fails to pay these expenses; the Respondent paternal grandmother, Ms Jerry, and the Respondent Father, Mr Kipa, pay to the Applicant the necessary expenses incurred by or on behalf of the Applicant and Ms V in returning the child to New Zealand within two (2) business days of the Applicant making a written demand for reimbursement of the said expense.

6. The Applicant be at liberty to forthwith notify the Australian Federal Police of these Orders.

7. As soon as practicable, the Applicant cause a copy of these Orders to be served on the Australian Federal Police.

8. There be liberty to apply.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Department of Communities, Child Safety and Disabilities & Jerry & Kipa has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 7037 of 2012

Department of Communities, Child Safety and Disabilities

Applicant

And

Ms Jerry and Mr Kipa

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This is an application by Form 2 filed on 6 August 2012, seeking an Order for return of H, born in November 2007 (“the child”), pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”) made pursuant to what is known as the Hague Convention.

2. The application contains particulars which are supported by affidavit evidence including the affidavit of Ms Jane Key, a barrister and solicitor of the High Court of New Zealand, that provides evidence concerning the relevant New Zealand statute law and case law. There is also the evidence of Ms V, the applicant for the purposes of the Hague Convention, seeking a return Order in respect of the child.

3. I am satisfied on the material contained in the Form 2 Application and the affidavit material in support that the Applicant establishes each of the five requirements it is obliged to establish under the relevant Regulations for the purpose of a return Order being made.

4. On this, the first return date of the application, the Respondents to it, namely Ms Ms Jerry, the paternal grandmother, and Mr Kipa, the Respondent Father, appear on the application by telephone. They have been provided as of yesterday with a copy of the Orders that the Applicant seeks that the Court makes including, most particularly, an Order for the child to be returned to the country of New Zealand on or before 28 August 2012.

5. Both of the Respondents express their consent to the Court making the return Order pursuant to the Regulations. Neither raises any ground in defence.

6. Together with the return Order, there are a number of interim Orders pending the child’s return that are sought by the Applicant the making of which are likewise consented to by both Respondents.

7. In those circumstances and for those brief reasons, I make the Orders as set out at the commencement of these reasons.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 14 August 2012.

Associate: 

Date:  16 August 2012