Department of Communities, Child Safety and Disability Services and Seigel

[2017] FamCA 120

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF COMMUNITIES, CHILD SAFETY AND DISABILITY SERVICES & SEIGEL [2017] FamCA 120

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)

Department of Community Services, Community Services & Raelson [2014] FamCA 131
Department of Health and Community Services, State Central Authority v Casse (1995) FLC 92-629

APPLICANT: Department Of Communities, Child Safety and Disability Services

RESPONDENT: Mr Seigel

FILE NUMBER: BRC 1497 of 2017

DATE DELIVERED: 27 February 2017

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 27 February 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms N. Fitzgibbon, McInnes Wilson Lawyers

RESPONDENT: In person

Orders

IT IS ORDERED BY CONSENT UNTIL FURTHER ORDER THAT

1. The Respondent Father, Mr Seigel, born … 1980 (the Respondent) be restrained and an injunction issue, restraining him or any other person from removing, or attempting to remove the said children, B born … 2007 and C born … 2011 (the children) from the Commonwealth of Australia.

2. The Respondent be restrained and an injunction issue, restraining him from changing the said children’s usual day to day residence from the premises where he and the said children are currently residing, namely, D Street, Suburb E 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 Father, Father, Mr Seigel, born … 1980 and the said children, B, a female born … 2007 and C, a male born … 2011 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 himself and the said 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 Hogan at 10.00 am on 13 April 2017.

AND IT IS DIRECTED BY CONSENT THAT

1. The Respondent file and serve a Notice of Address for Service by no later than 4.00 pm on 3 March 2017.

2. The Respondent file and serve a Form 2A Answer and Cross-Application by no later than 4.00 pm on 13 March 2017.

3. The Respondent file and serve any affidavits of evidence in chief to be relied upon at the hearing by no later than 4.00 pm on 20 March 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 3 April 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 7 April 2017.

IT IS NOTED that publication of this judgment by this Court under the pseudonym < Department of Communities, Child Safety And Disability Services & Seigel 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 12287 of 2016

Department Of Communities, Child Safety and Disability Services

Applicant

And

Mr Seigel

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. By an Application in Form 2, filed on 16 February 2017, the Director-General, Department of Communities, Child Safety and Disability Services in his capacity as a State Central Authority under the Family Law (Child Abduction Convention) Regulations of 1986 applies for interim and final orders with respect to the children, B, born in 2007 and C, born in 2011. 

2. The requesting Applicant under the Convention is the children’s mother, Ms F, who is a national of New Zealand. The Respondent to the Application is the children’s biological father, who is also a New Zealand national, although living in Australia. 

3. The Application alleges, in essence - in broad summary - that the father retained the children wrongfully in Australia. 

4. There is evidence before the Court provided by an expert sufficient to establish on a prima facie basis that the mother has rights of custody under New Zealand law.  Pending the hearing of the matter, which will occur on 13 April 2017, the Application seeks interim orders which maybe very broadly described so as to maintain the status quo, as it were, in terms of the father not moving with the children pending determination of the Application. 

5. I am satisfied, having regard to 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.  Consequently, I am satisfied that is appropriate to make the interim orders sought by the Applicant, noting as I do that the Respondent consents to the same.  

6. I therefore make interim orders as per the draft provided.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 27 February 2017.

Associate: 

Date:              27 February 2017