Department of Communities, Child Safety and Disability Services and Brecht

[2012] FamCA 365

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF COMMUNITIES, CHILD SAFETY AND DISABILITY SERVICES & BRECHT [2012] FamCA 365

FAMILY LAW – CHILD ABDUCTION - HAGUE CONVENTION - Where the Respondent Father has agreed that the subject child be returned - Where the Court is satisfied that an Order for return is appropriate in the circumstances

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

APPLICANT: Department of Communities, Child Safety and Disability Services

RESPONDENT: Mr Brecht

FILE NUMBER: BRC 2674 of 2012

DATE DELIVERED: 22 May 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 22 May 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Green

SOLICITOR FOR THE APPLICANT: Crown Law

Orders

1. The child D, born … March 2001, be returned to New Zealand and for the purposes of giving effect to this order:

   (a)The said child leave the Commonwealth of Australia on or before 11 June 2012.

   (b)The said child arrive in New Zealand no later than 11 June 2012.

   (c)Pending the said child returning to New Zealand, the Respondent Father, Mr Brecht, born … January 1975, continue to be restrained and an injunction is hereby issued, restraining him from removing or attempting to remove the said child from the Commonwealth of Australia.

   (d)Pending the return of the said child to New Zealand, the Respondent Father continue to be restrained and an injunction is hereby issued, restraining him from changing the residence of the said child from the premises where the Respondent Father and the said child are currently residing namely, … F Street, Suburb S in the State of Queensland.

   (e)Paragraphs 1, 2, 4 and 5 of the orders of the Honourable Justice Kent made 16 April 2012 be discharged forthwith.

   (f)Subject to sub-paragraph (g) below, the Commissioner of the Australian Federal Police and all Federal Agents of the Australian Federal Police retain the names of the Respondent Father and the said child, on the All Ports Watch Alert System at all international departure points in Australia.

   (g)The said child and the Respondent Father be removed from the All Ports Watch Alert System by officers/agents of the Australian Federal Police upon receipt of a letter from an officer of the Court Services Unit, Department of Communities, Child Safety and Disability Services advising of the travel arrangements made for the said child to return to New Zealand, from 12.00 am on the date nominated for the said travel in the letter.

   (h)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.

   (i)To facilitate the return of the said child to New Zealand, an officer of the Court Services Unit, Department of Communities, Child Safety and Disability Services, upon being advised of the travel arrangements made for the said child to return to New Zealand, be at liberty to release to the Respondent Father or his nominee the Respondent Father’s original New Zealand passport and the original passport of the said child for the purposes of the said child’s return to New Zealand.

   (j)The Respondent Father do all acts and things necessary to cause the said child to be delivered to the Brisbane International Airport with the said child’s original New Zealand passport and the child’s personal effects not less than two (2) hours prior to the scheduled departure time of the flight on which the said child has been booked to travel to New Zealand, such flight details to be advised to the Respondent Father by an officer of the Court Services Unit, Department of Communities, Child Safety and Disability Services.

   (k)The Respondent Father do all acts and things necessary to cause the said child to check in to the said child’s scheduled flight at the Brisbane International Airport.

   (l)Liberty to apply be granted to the applicant to seek any further Orders necessary to allow him to make such arrangements as are necessary to facilitate and ensure the return of the child in accordance with this order.

2. All other Applications be dismissed.

3. 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 Disability Services & Brecht 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 2674 of 2012

Department of Communities, Child Safety and Disability Services

Applicant

And

Mr Brecht

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. By application filed on 27 March 2012, the recently renamed Director-General, Department of Communities, Child Safety and Disability Services, in her capacity as the State Central Authority under the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”), applied for final Orders that the child D (“the child”), born in March 2001, be returned to the country of New Zealand.

2. The Respondent to the application is the child’s father, Mr Brecht. He appeared before me, representing himself, on 16 April 2012, when I made interim Orders on the first return date of the application. Those Orders included provision for the Respondent to file material if he sought to dispute the application, and an Order was made for the hearing of the application, which would obviously include any cross-application filed by the Respondent, to occur today.

3. In the event, the Respondent has not filed material in opposition to the application and appears by telephone today, expressing his consent to Orders, including an Order for return, amongst others, to be made. I am satisfied in my exchange with the Respondent that he understands the Orders to which he consents and the effect of those Orders.

4. The application referred to particularises three alternative dates of alleged wrongful retention of the child by the Respondent in Australia as 22 January, 27 January or 15 February 2012. In the event, there is no forensic need for me to determine which of those particular dates applies, but the following facts are made clear on the application and the material filed in support, and none of it is contested by the Respondent.

5. I therefore find, first, that the application was filed less than one year after the subject child’s retention within the meaning of reg 16(1) of the Regulations. Second, the Applicant establishes each of the five matters identified in reg 16(2) and therefore establishes that the child’s retention in Australia was wrongful within the meaning of the Regulations. Third, no ground for refusal of an Order under reg 16(3) is advanced by the Respondent.

6. In those circumstances and for those reasons, I am satisfied that Orders in terms of the Minutes of Consent that have been signed by the Crown Solicitor on behalf of the Applicant and by the Respondent Father on his own behalf ought be made, and I make Orders in those terms as set out at the commencement of these reasons.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 22 May 2012.

Associate: 

Date: 22 May 2012