Department of Communities, Child Safety and Disability Services and Hetley

[2017] FamCA 427

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF COMMUNITIES, CHILD SAFETY AND DISABILITY SERVICES & HETLEY [2017] FamCA 427

FAMILY LAW – CHILD ABDUCTION – Child brought to Australia – Hague Convention – Application under the Hague Convention for the return of the child to United Kingdom – Interim order made.

Family Law Act 1975 (Cth)
Family Law (Child Abduction Convention) Regulations 1986 (Cth)
Children Act 1989 (UK)

APPLICANT: Director-General, Department of Communities, Child Safety and Disability Services

RESPONDENT: Ms Hetley

FILE NUMBER: BRC 5190 of 2017

DATE DELIVERED: 19 June 2017

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 19 June 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Fitzgibbon, McInnes Wilson Lawyers

SOLICITOR FOR THE RESPONDENT: Mr Farr, Fedorov Lawyers

Orders

IT IS ORDERED BY CONSENT UNTIL FURTHER ORDER THAT

1. The Respondent Mother, Ms Hetley (the Respondent) born … 1980, be restrained and an injunction issue, restraining her or any other person from removing, or attempting to remove the child, B, a female, born … 2016 (the child) from the Commonwealth of Australia.

2. The Respondent be restrained and an injunction issue, restraining her from changing the child’s usual day to day residence from the premises where she and the said child are currently residing, namely, C Street, Suburb D 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 Hetley born … 1980 and the child, B, a female, born … 2016 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 child.

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 Hogan at 9.30 am on 28 July 2017.

AND IT IS FURTHER DIRECTED BY CONSENT THAT

1. The Respondent Mother file and serve a Notice of Address for Service by no later than 4.00 pm on 23 June 2017.

2. The Respondent Mother file and serve a Form 2A Answer and Cross-Application by no later than 4.00 pm on 26 June 2017.

3. 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 5 July 2017.

4. 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 19 July 2017.

5. 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 21 July 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 & Hetley 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 5190 of 2017

Director-General, Department of Communities, Child Safety and Disability Services

Applicant

And

Ms Hetley

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. By application in Form 2, filed on 26 May 2017, the Director General, Department of Communities, Child Safety and Disability Services, in his capacity as the State Central Authority, pursuant to the Family Law (Child Abduction Convention) Regulations 1986, applies for both interim and final orders with respect to the child, B (a female) born in 2016 in Australia. 

2. The requesting Applicant under the Convention is the child’s father, Mr E, who was born in 1985 and who is a British national currently living in F Town in the United Kingdom.

3. The Respondent to the Application is the child’s mother, Ms Hetley, born in 1980 in Africa.  On the evidence provided by Mr E, Ms Hetley is said to have moved to live in the United Kingdom when she was about 13 years of age. 

4. It appears, on the material before me, that Mr E applied unsuccessfully on an ex parte basis to the Family Court at G Town for what I understand to be parenting orders and for an order to prevent the child’s removal from the United Kingdom. 

5. That matter was, it seems, before the Family Court in the United Kingdom on 20 December 2016.

6. Whilst there is reference to orders of a procedural nature being made and an order being made to adjourn Mr E’s Application, it seems that his Application for an order restraining the child’s removal from the United Kingdom was unsuccessful. 

7. I do not have, at this stage, before me the reasons for the decision.  At the moment, the only material that relates to that Application in the United Kingdom is, as I understand it, the Application itself which, as I have said, was made on an ex parte basis.

8. It appears that the basis for the refusal to make the order sought by Mr E was a conclusion, based on the material before the Court at that time, that it appeared to that Court that the child was habitually resident in Australia and, therefore, there was no jurisdictional basis to make orders restraining her removal from the United Kingdom, as sought by Mr E. 

9. By way of brief background in relation to this Application before this Court, it appears on the evidence of Mr E that the parties met in November 2014 in the United Kingdom and commenced cohabitation there in about mid-June 2015. 

10. On his evidence, they lived together in a home owned by Ms Hetley’s sister in F Town.  Ms Hetley lived there with her three other children, who are, of course, the child’s siblings. 

11. Mr E’s evidence is that, after Ms Hetley learned of her pregnancy, an agreement was reached between them that she would give birth to the child (who was B) in Australia.  He asserts that this decision and/or agreement was reached on the basis that it would assist him in the future to obtain a Visa.  He also asserts that this asserted agreement occurred in the context of asserted future considerations between the parties in relation to a possible future move to Australia. 

12. In furtherance, it seems, of this alleged agreement, Mr E, Ms Hetley and her three children, travelled to Australia and stayed with another sister of Ms Hetley’s at H Town. 

13. As I understand the material, it appears that Ms Hetley and her three children travelled to Australia on about 14 June 2016 and Mr E joined them here on about 22 July 2016. 

14. B was born in Australia in 2016. 

15. Mr E subsequently returned to the United Kingdom on about 14 October 2016, he says, so that he could earn some money to support the family unit, if I might term it that. 

16. It appears, on the material before me, that Ms Hetley and all of her children travelled to the United Kingdom on 9 November 2016 and returned to the home in which they had previously lived in F Town. 

17. Consequently, it appears that the child was not quite three months of age when she left Australia to travel to the United Kingdom.  It also appears on the material before me that she remained in the United Kingdom for not quite three months before she travelled with her mother and two of her siblings back to Australia on or about 1 February 2017. 

18. On Mr E’s evidence, there were a number of events which occurred in the period between the return of Ms Hetley and the children to the United Kingdom (on or about 9 November 2016) and 3 December 2016 which culminated, on his account, in Ms Hetley changing the locks to the F Town property on about 3 December 2016. 

19. Mr E says that it was in this context, then, that he applied ex parte to the Family Court in G Town seeking the orders to which I have already referred. 

20. As I understand the material thus far, Mr E also asserts that, on 31 January 2017, Ms Hetley told him there was to be a naming ceremony for the child in F Town in early 2017.  However, as I have already noted, it appears that Ms Hetley, the child and two of the child’s siblings left the United Kingdom to travel to Australia on or about 1 December 2016.

21. The material establishes that, on about 22 March 2017, Mr E signed a requisite Authority to Act in an Application for Return orders in relation to the child and that the Form 2 was filed in this Court on 26 May 2017 and allocated the first return date today, 19 June 2017. 

22. The parties, as I have said, are agreed in relation to interim orders which appear to me to be quite appropriate because I am satisfied, having regard to the contents of the Form 2 Application and material filed in support of the same, that there is at least a prima facie case made out, sufficient to provide a basis for the making of interim orders to maintain, as it were, the status quo in term of the child’s remaining in Australia pending the determination of the Application for Return orders. 

23. The parties are also agreed, helpfully, in relation to a timetable for the filing of certain documents.  The matter will be listed for final hearing before me on 28 July 2017.

24. For the reasons I have expressed, I am satisfied it is appropriate to make the interim orders by consent, and I do so.  Consequently, I make orders in terms of the Minute signed by me and placed with the papers.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 19 June 2017.

Associate:     

Date:    20 June 2017