Department of Communities, Child Safety and Disability Services and Crane

[2012] FamCA 435

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF COMMUNITIES, CHILD SAFETY AND DISABILITY SERVICES & CRANE [2012] FamCA 435

FAMILY LAW – CHILD ABDUCTION – Hague Convention - Whether child to be returned - Where the parties consent to an Order for return of the subject child being made

Convention on the Civil Aspects of International Child Abduction, opened for signature 25 October 1980, 1987 ATS 2 (entered into force generally 1 December 1983)
Family Law Act 1975 (Cth)
Family Law (Child Abduction Convention) Regulations 1986 (Cth)

APPLICANT:  Department of Communities, Child Safety and Disability Services

RESPONDENT: Ms Crane

FILE NUMBER: BRC 3730 of 2012

DATE DELIVERED: 5 June 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 5 June 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Crown Law

SOLICITOR FOR THE RESPONDENT: Hall Payne Lawyers

Orders

1. The child, L, born … May 2010, 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 18 June 2012.

   (b)       The said child arrive in New Zealand no later than 19 June 2012.

   (c)       Pending the said child returning to New Zealand, the Respondent Mother, Ms Crane, born … October 1987, continue to be restrained and an injunction is hereby issued, restraining her 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 Mother, Ms Crane, born … October 1987, continue to be restrained and an injunction is hereby issued, restraining her from changing the residence of the said child from the premises where the Respondent Mother and the said child are currently residing namely, … M Street, Suburb B, … in the State of Queensland.

   (e)       Paragraphs 1, 2, 8, 9, 10 and 11 of the orders of the Honourable Justice Kent made 11 May 2012 and the orders of the Honourable Justice Kent made 25 May 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 Mother and the said child on the All Ports Watch Alert System at all international departure points in Australia.

   (g)       The said child, L, born … May 2010, and the Respondent Mother, Ms Crane, born … October 1987, 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 Mother or her nominee the Respondent Mother’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.

1. The Respondent Mother, Ms Crane, born … October 1987, book and pay all the necessary expenses associated with returning the said child, L, born … May 2010, to New Zealand, including the cost of airfares and departure taxes (if any) for the child to travel from Brisbane or Gold Coast International Airport to New Zealand, and in the event the Respondent fails or refuses to book and pay these expenses; the father, Mr D, born … August 1978, be at liberty to book and pay for airfares for the said child’s return to New Zealand in compliance with this Order and the Respondent Mother, Ms Crane pay to Mr D the necessary expenses incurred by or on behalf of Mr D in returning the child to New Zealand, within two business days of Mr D  making a written demand for reimbursement of the said expenses.

2. That all other applications be dismissed.

3. That there be liberty to apply.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Department of Communities, Child Safety & Disability Services & Crane 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 3730 of 2012

Department of Communities, Child Safety and Disability Services

Applicant

And

Ms Crane

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. By application filed on 27 April 2012, the 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, L, born in May 2010, be returned to the country of New Zealand.

2. The Regulations, which are made under ss 111B and 111D of the Family Law Act 1975 (Cth), give effect to the Convention on the Civil Aspects of International Child Abduction (“the Convention”),[1] which is set out in Schedule 1 to the Regulations.

   [1] opened for signature 25 October 1980, 1987 ATS 2 (entered into force generally 1 December 1983).

3. The person who made the request within the meaning of reg 2 of the Regulations is the child’s father, Mr D (“the Father”), who is currently residing in New Zealand. The Respondent to this application is the child’s mother, Ms Crane (“the Respondent”).

4. The application was served on the Respondent on 9 May 2012. On 11 May 2012, being the first return date of the application when the Respondent was self-represented, I made a number of Orders, including interim Orders to give effect to the Convention pending the final hearing of the application. Those Orders included an Order for the trial of the proceedings to be heard on 12 June 2012. On 25 May 2012, I made further Orders in chambers by the consent of both parties, extending the time for each party respectively to file their material as had been ordered on 11 May 2012. The Respondent obtained legal advice, obviously from her current solicitors, who filed a Notice of Address for Service on her behalf on 29 May 2012. The Respondent has not filed any other material.

5. The Form 2 Application is supported by the affidavit of Mr D and the affidavit of Ms I, the latter being an expert solicitor practising in New Zealand who provides evidence as to the Father’s rights of custody under New Zealand law. Ms I’s affidavit was not challenged by the Respondent.

6. The Respondent was born in October 1987 in New Zealand and the Father was likewise born in New Zealand in August 1987. The Father and the Respondent had a de facto relationship between about 2007 and August 2011, and as already noted, L was born in May 2010.

7. The Respondent removed L from New Zealand and came to Australia on or about 10 March 2012.

8. Based upon the unchallenged contents of the Form 2 application, and the unchallenged affidavit material filed in support of it, including the expert evidence of Ms I as to the law of New Zealand; and the fact that the Respondent now consents to the making of a return Order; I am satisfied that the Applicant establishes each of the matters set out in reg 16(1A) of the Regulations and I find that L’s removal to Australia on or about 10 March 2012 was wrongful within the meaning of the Regulations.

9. As the Respondent, who is represented by her solicitor today, does not advance any ground for refusal of the making of a return Order under reg 16(3), and indeed consents to the Court making a return Order, such an Order must be made. In those circumstances and for those brief reasons, I make Orders in terms of the draft Order that has been handed up to me which has been signed by the parties with a further amendment then consented to in paragraph 1(e) reflecting accurately the dates of previous Orders.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 5 June 2012.

Associate: 

Date:  6 June 2012