Department of Communities, Child Safety and Disability Services and Pinaroa

[2017] FamCA 458

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF COMMUNITIES, CHILD SAFETY AND DISABILITY SERVICES & PINAROA [2017] FamCA 458

FAMILY LAW – CHILD ABDUCTION – Hague Convention - Application for the return of the child to New Zealand – Where habitual residence in New Zealand is established – Return order made.

Family Law Act 1975 (Cth)
Family Law (Child Abduction Convention) Regulations 1986 (Cth)
Care of Children Act 2004 (NZ)

Allesch v Maunz (1996) 187 CLR 640
De L v Director-General, New South Wales Department of Community Services and Anor (1996) 187 CLR 640

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

RESPONDENT: Mr Pinaroa

FILE NUMBER: BRC 4631 of 2017

DATE DELIVERED: 30 June 2017

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 30 June 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Fitzgibbon, McInnes Wilson Lawyers

RESPONDENT: No appearance

Orders

IT IS ORDERED BY WAY OF FINAL ORDER THAT

1. All previous Orders are discharged.

2. The child B (a female) born … 2009 be returned to New Zealand.

3. To give effect to Order (2):

   (a)the said child shall leave the Commonwealth of Australia on or before 14 July 2017;  and

   (b)the said child shall arrive in New Zealand on or before 15 July 2017;  and

   (c)pending the said child returning to New Zealand, the Respondent father, Mr Pinaroa born on … 1992, 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; and

   (d)pending the said child returning to New Zealand, the Respondent father is restrained and an injunction is hereby issued restraining him from removing or attempting to remove the said child from the premises where he and the child are currently residing, namely …, Gold Coast in the State of Queensland; and

   (e)subject to sub-paragraph (f) below, the Commissioner of the Australian Federal Police and all federal agents of the Australian Federal Police retain the names of the Respondent father, Mr Pinaroa, born … 1992, and the said child on the Family Law Watchlist at all international departure points in Australia; and

   (f)the names of the child and the Respondent father be removed from the Family Law Watchlist by officers/agents of the Australian Federal Police:

   (i)upon receipt of a letter from an officer of the Department of Communities, Child Safety and Disability Services advising of the travel arrangements made for the child to return to New Zealand from 12.00 am on the date nominated for the travel in the letter; or

   (ii)upon the child presenting to either the Brisbane International Airport or Gold Coast International Airport with a fully paid ticket for an airfare for her to travel direct to New Zealand on the same day that she is presented.

4. The Respondent shall deliver the child to the Brisbane International Airport or Gold Coast International Airport at a time and date, not later than 14 July 2017, nominated by an officer of the Department of Communities, Child Safety and Disability Services.

5. The Respondent shall cause the said child to be delivered to the Brisbane International Airport or Gold Coast International Airport with appropriate items of clothing and luggage for her travel to New Zealand.

6. 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.

AND IT IS FURTHER ORDERED THAT

1. The Respondent will be deemed to have been served with this Order provided that:

   (a)a copy of the same is emailed to him via the email address/es he provided to the Court on 26 May 2017; and

   (b)a copy of the same is sent to him by registered mail addressed to …, Gold Coast in the State of Queensland.

2. Ms F, Department of Communities, Child Safety and Disability Services or her nominee has liberty to advise the Respondent’s mother, Ms  Pinaroa, of the terms of the Order made today.

3. The Applicant has liberty to apply to seek any further orders necessary to allow him or officers of the Department of Communities, Child Safety and Disability Services to make such arrangements as are necessary to facilitate and ensure the return of the child in accordance with this Order and pursuant to the Central Authority’s obligation under Regulation 20 of the Family Law (Child Abduction Convention) Regulations 1986 (Cth).

IT IS FURTHER ORDERED THAT, IN THE EVENT THE CHILD HAS NOT LEFT THE COMMONWEALTH OF AUSTRALIA BY THE DATE REFERRED TO IN ORDER 3(a) ABOVE, THEN UPON WRITTEN CONFIRMATION OF THAT FACT BEING PROVIDED TO THE COURT BY THE APPLICANT THEN

1. A warrant in accordance with Form 2C of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) shall issue authorising and directing the Marshal of the Family Court and the Commissioner and all federal agents of the Australian Federal Police and officers of the Queensland Police Service and all other police officers in all other States and Territories of the Commonwealth of Australia:

   (a)to find and recover the child B (a female) born … 2009 and deliver the said child to an officer of the Department of Communities, Child Safety and Disability Services, Queensland, or such person as may be nominated by that officer, or if the said child is located in another State or Territory of the Commonwealth, to a person nominated by the Director-General, Department of Communities, Child Safety and Disability Services, Queensland; and, for the purposes of the exercise of the foregoing powers,

   (b)to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place where the said child may be or where there is any reasonable cause to believe the said child may be.

2. Upon her recovery pursuant to the warrant issued in compliance with Order (10), the said child shall live with a person nominated by an officer of the Department of Communities, Child Safety and Disability Services pending her return to New Zealand.

AND IT IS FURTHER ORDERED THAT

1. All other applications are dismissed.

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 & Pinaroa 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 4631 of 2017

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

Applicant

And

Mr Pinaroa

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. By an Application in Form 2 filed on 11 May 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 (Cth) seeks an order that nearly eight and half year old B (a female) born in 2009 be returned to New Zealand.[1] 

   [1] Regulation 16(1)(a) Family Law (Child Abduction Convention) Regulations 1986 (Cth).

2. The Regulations under which this Application must be determined are made pursuant to s 111B[2] of the Family Law Act 1975 (Cth) which provides that the Regulations may make provision as is necessary or convenient to enable the performance of the obligations of Australia under the Convention on the Civil Aspects of International Child Abduction. The Convention is set out in Schedule 1 to the Regulations.

   [2]And, in so far as they make provision in relation to the rules of evidence which are to apply in proceedings under them, pursuant to s 111D of the Family Law Act 1975 (Cth).

3. The Convention provides a mechanism for the prompt return of wrongfully removed or retained children between contracting States.  Australia and New Zealand are contracting States to the Convention. 

4. The Regulations are to be construed having regard to the Principles and Objects mentioned in the preamble to, and Article 1 of, the Convention and as recognising, in accordance with the Convention, that the appropriate forum for resolving disputes relating to children’s care, welfare and development is ordinarily their country of habitual residence, and as recognising that the effective implementation of the Convention depends on the reciprocity and mutual respect between judicial or administrative authorities (as the case may be) of Convention countries. 

5. The purpose of the Convention was authoritatively explained by the majority of the High Court in De L v Director-General, New South Wales Department of Community Services and Anor[3] wherein it was emphasised that the Convention is directed to the prompt return of children to the State of their habitual residence, where questions concerning their welfare and the merits of any dispute about where and with whom they should live can be determined. That is, applications like this one, made pursuant to the Regulations, are matters about forum, not about parenting per se.

   [3] (1996) 187 CLR 640.

Proceeding in the absence of the Respondent

1. The Respondent is the child’s father. He appeared in person before me at the first return hearing of this matter on 26 May 2017. He consented to the terms of the interim orders which I made that day and provided the Court with an email address to facilitate communication until he filed a Notice of Address for Service as required by a term of the interim order.

2. Despite that being a requirement, Mr Pinaroa has not filed a Notice of Address for Service. In similar fashion, he has not complied with the agreed order that he provide his passport and that of the child to the Applicant’s nominated delegate. Further, despite agreeing to a set of directions which provided him with the opportunity to file material, he has not filed any affidavit material either.

3. He has not appeared today and I accept that attempts by the Applicant to maintain contact with him personally after the hearing on 26 May 2017 have been unsuccessful. However, the fact of his appearance that day establishes that he has been provided with a copy of the Form 2 Application filed by the Applicant on 11 May 2017 and that he is aware of the proceedings, the order sought by the Applicant and the material on which the Applicant intended to rely.

4. The concept of procedural fairness encompasses the indispensable requirement of our system of justice that a party being affected by a decision must have the opportunity to be heard (that is, to place before the Court material, information and submissions) before a decision is made in relation to it: see authority such as Allesch v Maunz (1996) 187 CLR 640.

5. In saying this, as was emphasised by Kirby J in Allesch v Maunz, the opportunity to be heard is the essential requirement for procedural fairness to have been afforded to a party, not that the Court actually receive evidence or hear submissions by a party before making orders.  As his Honour said, (at paragraph 38 of his Judgment):

   Sometimes through stubbornness, confusion, misunderstanding, fear or other emotions, a party may not take advantage of the opportunity to be heard, although such opportunity is provided.  Affording the opportunity is all that the law and principle require. 

6. I am completely confident that Mr Pinaroa has been afforded the opportunity to be heard in these proceedings because I know he is aware of this hearing today because he was in Court when I told the parties on 26 May 2017 that I intended to hear the matter today.

7. Further confirmation of this was provided to the parties by the correspondence sent on behalf of the Registry and which has been marked as an Exhibit in these proceedings.

8. Consequently, I intend to determine the Application in Mr Pinaroa’s absence because I am satisfied he has been afforded the opportunity to appear and be heard in respect of the Application for an order returning the child to New Zealand.

Brief Overview

1. The requesting Applicant under the Convention is the child’s mother, Ms G. She was born in 1990 in New Zealand.

2. The Respondent was born in 1992 in New Zealand. As at 26 May 2017, he was living with the child at premises situated on the Gold Coast in the State of Queensland. The terms of the interim order to which the Respondent consented that day required that he remain living at that address with the child until further order.

3. Despite this, information obtained by the Applicant this morning suggests that he may have moved with the child to another address. 

4. The child’s parents have two other children together:

   a)H born in 2009 (now about seven and half years of age);  and

   b)J born in 2011 (now six years of age).

5. After the parents separated in about 2011, they agreed that the child would remain in her father’s care and spend time with her mother every day. I infer that they agreed that the parties’ sons would remain living with their mother and they continued to do so.

6. It seems that, in about 2013, the father was convicted in the District Court (New Zealand) of assaulting the mother. Her evidence is that he physically assaulted her when under the influence of alcohol one evening.

7. Further, on 13 February 2013, that Court also made a Protection Order to which the father was the named respondent and the mother the aggrieved. The mother and all three children were named as the persons protected by the terms of the order. It was a term of the order that the father attend a “Pathways to Ending Family Violence” program. I do not know whether he did or not.

8. On the mother’s evidence, the child spent time with her on a daily basis for the first few years after the 2011 parental separation. However, she says that, over time, the frequency with which the child interacted with her diminished and that, from about July 2016, the child did not spend time with her at her home.

9. The mother says that, in about August 2016, she saw photos of the child which revealed she was in Australia. It seems the father had remained in New Zealand. The mother’s evidence is that she did not know the child had travelled to Australia and she told the father to return the child to New Zealand. Her evidence is that the father told her that he would return the child to New Zealand and would place her into her care if she (the mother) did not apply to a Court for orders at that time.

10. It seems that the child subsequently returned to New Zealand and recommenced school attendance in about September 2016. On the mother’s evidence, she continued to try to spend time with the child, but the father made this difficult.

11. The mother says that, in early December 2016, she learned via information provided by a family member that the father intended to take the child to Australia. On 6 December 2016, she attended at the father’s residence: whilst she saw the child, she says the father did not tell her why the child was not at school nor did he permit her to take the child with her or permit the child to stay at her mother’s home.

12. On 8 December 2016, the mother filed an application seeking parenting orders in relation to the child in the Family Court in New Zealand.

13. On 15 December 2016, the child entered the Commonwealth of Australia.

14. On 17 December 2016, the father entered the Commonwealth of Australia.

15. The mother subsequently signed an Authority to Act on 21 March 2017 and, on 12 April 2017, the Application for Return.

16. The mother’s evidence, as at 12 April 2017, is that she has only been permitted to speak with the child on one occasion via a Facebook call in or about early April 2017. She also says that the father has attempted to persuade her to move to Australia and, in early April 2017, told her he was returning to New Zealand. Despite telling her this, she says he did not tell her when he would return to New Zealand, or for how long; nor did he tell her whether the child would return to New Zealand.

17. It seems that, as at 12 April 2017 (when the mother swore her affidavit), the father had in fact returned to New Zealand. The mother’s evidence is that he told her he was not returning the child to New Zealand and continued to attempt to persuade her (the mother) to move to Australia – something she does not want to do.

18. As already noted, the Form 2 Application Initiating Proceedings was filed by the Applicant on 11 May 2017.

Matters which are clearly established on the evidence

1. I am satisfied that:

   a)the mother did not consent to the child moving to live in this country at any time before she was removed from New Zealand on 15 December 2016; and

   b)the mother did not consent to the child remaining living in Australia at any time after 15 December 2016 and proactively sought her return to New Zealand; and

   c)the mother has not in any way acquiesced to, or in, the child’s removal from New Zealand on 15 December 2016 or her retention in Australia after this date; and

   d)the Application for a return order for the child has been filed within one year of her removal from New Zealand and retention in Australia;[4] and

   e)the child is under 16 years of age.[5]

   [4] Regulation 16(1)(b) Family Law (Child Abduction Convention) Regulations 1986 (Cth).

   [5] Regulation 16(1A)(a) Family Law (Child Abduction Convention) Regulations 1986 (Cth).

2. I also consider that the evidence clearly establishes that:

   a)the child was habitually resident in New Zealand, a Convention country within the meaning of the Regulations, immediately before she was removed from New Zealand and thereafter retained in Australia by the Respondent;[6]   and

   b)by reason of her status as the child’s mother and, consequently, her guardian and by virtue of the operation of the relevant provisions of the Care of Children Act (2004) (NZ), the mother has rights of custody in relation to the child under the law of New Zealand;[7] and

   c)the child’s removal to Australia and retention here was in breach of the mother’s rights of custody;[8] and

   d)at the time of the child’s removal from New Zealand and subsequent retention here, the mother was actually exercising her rights of custody or would have exercised them if the child had not been removed from New Zealand and retained here.[9]

   [6] Regulation 16(1A)(b) Family Law (Child Abduction Convention) Regulations 1986.

   [7]Regulation 16(1A)(c) Family Law (Child Abduction Convention) Regulations 1986; by operation of the New Zealand legislation, that is, the Care of Children Act 2004 (NZ).

   [8] Regulation 16(1A)(d) Family Law (Child Abduction Convention) Regulations 1986.

   [9] Regulation 16(1A)(e) Family Law (Child Abduction Convention) Regulations 1986.

3. It follows from the above that I am persuaded that the Applicant has satisfied the Court that the child’s removal from New Zealand on 15 December 2016 and her subsequent retention in Australia after that date was wrongful under subregulation 16(1A) of the Regulations.[10]

   [10] Regulation 16(1)(c) Family Law (Child Abduction Convention) Regulations 1986.

4. Given this conclusion and that the other statutory prerequisites (to which I have already referred) have been satisfied, I am compelled to make an order for the child’s return to New Zealand unless the Respondent establishes one of the exceptions particularised in Regulation 16(3) of the Regulations.

5. Given that the Respondent has chosen not to file any affidavit material, there is no evidence before me which establishes any such exception. Consequently, I am mandated by the Regulations to order the return of the child to New Zealand.

1. Given that the object of the Convention is to secure the prompt return of children and that this child was wrongfully removed from New Zealand in mid-December 2016 and subsequently retained in Australia with consequent disruption to her education in New Zealand, I consider that she should be returned to New Zealand as soon as practicable. This will enable her to recommence her previous participation in the New Zealand education system and to resume a relationship with her siblings. It will also permit the parenting proceedings commenced by the mother before the Family Court in New Zealand to continue.

An order for a warrant to issue?

1. Regulation 14(1)(a)(iii) of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) enables the Applicant to apply for an order for the issue of a warrant mentioned in Regulation 31.

2. Whilst some might think it premature to make an order for the issue of the same before the date on which it has been ordered that a child leave the Commonwealth of Australia, I am persuaded that such an order in the terms I will formulate is appropriate given:

   a)the father’s non-compliance with the terms of the interim Orders made on 26 May 2017 by consent which required that he file a Notice of Address for Service; and

   b)the father’s non-compliance with the terms of the interim Orders made on 26 May 2017 by consent that he deliver the child’s passport to the officer named in the Order; and

   c)the father’s possible non-compliance with the terms of the interim Orders made on 26 May 2017 by consent that he not change the child’s usual residence from the address particularised and nominated in that order; and

   d)that it appears attempts after 26 May 2017 to remain in contact with the father via the email address he provided to the Court and the telephone number previously provided to the Applicant have been unsuccessful; and

   e)the consequent real risk that the father may not comply with an order requiring that the child is returned to New Zealand; and

   f)the importance of ensuring Australia’s speedy performance of its obligations under the Hague Convention; and

   g)the importance of ensuring that an abducting parent’s decision not to participate in proceedings such as these is not productive of further delay in the return of a child found to have been wrongfully removed from that child’s country of habitual residence and retrained here; and

   h)the impost on the public purse of further appearances in the matter in order to achieve the return of a child found to have been wrongfully removed from that child’s country of habitual residence and retained in Australia; and

   i)that it appears to be highly unlikely that the Applicant would be able to recoup any costs of such further appearances from the father.

How to deal with the issue of service?

1. Given the Respondent’s decision not to comply with the requirement imposed on him by the interim Order made by consent on 26 May 2017 to file a Notice of Address for Service, I am persuaded that it is appropriate to order that service on him of the order made today be deemed to have been effected provided that a copy of the same is sent to him via the email address/es he provided when he appeared that day (26 May 2017) and also sent to him by registered post to the address particularised in that interim Order as being that at which he and the child were then living – especially given that he agreed to being restrained from changing the same pending this hearing.

2. In order to increase further the prospect that the Respondent is made aware of the terms of the Order made today, I intend to permit a Departmental officer to inform the paternal grandmother, Ms Pinaroa, of the terms of the same.

A matter requiring particular emphasis

1. I emphasise that, if the father complies with the Order made today and ensures that the child leaves Australia for New Zealand by the ordered date, the precondition for the issue of a warrant will not be met. Consequently, he is entirely responsible for ensuring that his daughter is not exposed to the likely upset which may accompany the execution of a warrant by members of a police force.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 30 June 2017.

Associate:     

Date:              30 June 2017