Department of Communities, Child Safety and Disability Services and Helpman

[2017] FamCA 147

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF COMMUNITIES, CHILD SAFETY AND DISABILITY SERVICES & HELPMAN [2017] FamCA 147

FAMILY LAW – CHILD ABDUCTION – Hague Convention – Application under the Hague Convention for the return of the children to New Zealand – Where habitual residence in New Zealand is prima facie established – Interim order made.

Family Law (Child Abduction Convention) Regulations 1986 (Cth)
APPLICANT:	Department of Communities, Child Safety and Disability Services

RESPONDENT: Ms Helpman

FILE NUMBER: BRC 1975 of 2017

DATE DELIVERED: 10 March 2017

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 10 March 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Fitzgibbon

RESPONDENT: In person

Orders

IT IS ORDERED BY CONSENT UNTIL FURTHER ORDER THAT

1. The Respondent Mother, Ms Helpman born … 1983 (the Respondent), be restrained and an injunction issue, restraining her or any other person from removing, or attempting to remove the children, B born … 2012, C born … 2013 and D born … 2015 (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, E Street, Suburb F in the State of Queensland other than to move to G Street, Suburb H 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 Helpman born … 1983 and the children, B (a male) born … 2012, C (a female) born … 2013 and D (a male) born … 2015 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 Communities, Child Safety and Disability Services 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.

IT IS DIRECTED THAT

1. The Application in Form 2 is listed for hearing before Justice Forrest at 10.00 am on 28 April 2017.

AND IT IS DIRECTED BY CONSENT THAT

1. The Respondent Mother file and serve a Form 2A Answer and Cross-Application by no later than 4.00 pm on 24 March 2017.

2. 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 March 2017.

3. 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 14 April 2017.

4. 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 April 2017.

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 Communities, Child Safety and Disability Services & Helpman 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 1975 of 2017

Department of Communities, Child Safety and Disability Services

Applicant

And

Ms Helpman

Respondent

REASONS FOR JUDGMENT

1. By an Application in Form 2 filed 23 February 2017 the Director-General, Department of Communities, Child Safety and Disability Services, in his capacity as the State Central Authority under the Family Law (Child Abduction Convention) Regulations 1986, applies for interim and final orders with respect to the children B, C and D, who were born in 2012, 2013 and 2015 respectively.

2. The requesting Applicant under the Convention is the children’s father who is a national of New Zealand.  The Respondent to the Application is the children’s mother. 

3. The Application alleges, in essence, that the children were wrongfully removed from New Zealand to Australia or, perhaps alternatively, wrongfully retained in Australia.

4. There is evidence before the Court provided by an expert that is sufficient to establish, on a prima facie basis, that the father has rights of custody under New Zealand law. 

5. Pending the hearing of the matter on a final basis - which is listed to occur before Forrest J on 28 April 2017 - the Application seeks interim orders, in essence, to maintain the status quo of the children’s presence in Australia.

6. I am satisfied, having regard to the contents of the Form 2 Application and the material filed in support of it, that there is, at least, a prima facie case for a return order to be made.  I am satisfied, therefore, that it is appropriate to make interim orders in the terms sought by the Applicant, as amended by me in the manner outlined to the parties.  I note, also that the Respondent consents to orders being made in those terms. 

7. I therefore make interim orders in the terms of the draft provided to me, as amended in the manner I have indicated.  I also make directions in terms of the proposed directions, noting that the Respondent had already filed a Notice of Address for Service and, therefore, there is no necessity to make any direction that she do so.  The orders will issue in those terms.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 10 March 2017.

Associate: 

Date:              10 March 2017