Department of Communities, Child Safety and Disability Services and Verrender

[2016] FamCA 498

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF COMMUNITIES, CHILD SAFETY AND DISABILITY SERVICES & VERRENDER [2016] FamCA 498

FAMILY LAW – CHILDREN – Form 2 Application –interim orders made ex parte

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

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

RESPONDENT: Ms Verrender

FILE NUMBER: BRC 5069 of 2016

DATE DELIVERED: 10 June 2016

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 10 June 2016

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Parrott, Crown Law

RESPONDENT: No appearance

Orders

IT IS ORDERED THAT

1. The Form 2 Application filed 31 May 2016 be heard on ex parte basis.

AND IT IS ORDERED UNTIL FURTHER ORDER THAT

1. The Respondent Mother, Ms Verrender, born … 1982, be restrained and an injunction issue restraining her and any other person from removing, or attempting to remove the child, B, a female born … 2008, from the Commonwealth of Australia.

2. The Respondent mother, Ms Verrender, born … 1982,  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 child are currently residing, believed to be, 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 these Orders.

4. The passports of the Respondent Mother, Ms Verrender, born … 1982, and the child B, a female born … 2008, be surrendered to an officer of the Department of Communities, Child Safety and Disability Services.

5. The Commissioner of the Australian Federal Police place the names of the Respondent Mother and child on the Family Law Watch List for a period of two (2) years.

6. The Applicant be at liberty to forthwith notify the Australian Federal Police of these Orders.

7. The parties have liberty to apply by directing correspondence to … to the attention of the case manager.

AND IT IS DIRECTED THAT

1. The Respondent Mother file and serve a Notice of Address for Service by no later than 4.00 pm on 17 June 2016.

2. The Respondent Mother file and serve a Form 2A Answer and Cross-Application by no later than 4.00 pm on 17 June 2016.

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 2 July 2016.

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 14 July 2016.

5. The Application in Form 2 is listed for hearing before Justice Carew at 10.00  am on 19 July 2016.

AND IT IS FURTHER DIRECTED THAT

1. The Applicant serve a copy of this Order, the Form 2 Application and the affidavit of Ms E filed 31 May 2016 on the Respondent as soon as practicable.

NOTATION:

1. In the event that the Respondent Mother applies to the Court pursuant to Clause 8 of this Order, notice of that application be brought to the attention of the Associate to Justice Hogan by directing correspondence to … to the attention of the case manager.

IT IS NOTED that publication of this judgment by this Court under the pseudonym DCCSDS & Verrender 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 5069 of 2016

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

Applicant

And

Ms Verrender

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. By Application in Form 2, filed on 31 May 2016, the Director-General, Department of Communities, Child Safety and Disability Services (in his capacity as the Central Authority pursuant to the Family Law (Child Abduction Convention) Regulations 1986) applies, amongst other things, for an order for the return of the child B, a female born in 2008 to the country of Brazil. 

2. The Court is asked today by the Applicant to make interim orders in terms of the particularised paragraphs of the Form 2 Application on an ex parte basis. 

3. If orders are made in the terms sought, the Respondent will be restrained from removing or attempting to remove the child from the Commonwealth of Australia and from changing her usual day-to-day residence - which at this stage is believed to be C Street, Suburb D, in Queensland.  The Respondent will also be required to surrender her passport and the child’s passport to an officer of the Applicant.  The Respondent’s name and that of the child will be placed by the Commissioner of the Australian Federal Police on the Family Law watch list at all international departure points in Australia.

4. An Applicant seeking that an interim order be made without notice to a Respondent must satisfy the Court about why the order should be made without notice to that party and why shortening the time of service of the application and the fixing of an early date for hearing after service would not be more appropriate.  Here the Applicant relies upon the contents of the Form 2 application and also the contents of an affidavit from Ms E, senior team leader with the Department, as providing evidence of the basis upon which the Court would be satisfied that the orders sought should be made on an ex parte basis.

5. Ms E’s evidence is, in broad summary, that the Court would be persuaded that there is a risk that, if the Respondent was provided notice of the Application before orders are made restraining her from removing the child from the Commonwealth of Australia and/or changing the child’s residence, she may in fact act to remove the child from Australia.

6. It appears from the contents of the Form 2 Application and the contents of Ms E’s affidavit - at least on a prima facie basis - that the Respondent removed the child from Brazil, where it is contended she was at that time habitually resident, on or about 4 February 2015, and travelled with her to Scotland.

7. A conversation, a transcript of which appears at page 36 of the Form 2, appears to have taken place between the Respondent and the child’s paternal grandmother.  The contents of the transcript of that WhatsApp conversation includes the following relevant information:

   We arrived in Scotland yesterday. 

   The trip was ok. 

   I really wish the child could have said goodbye to you.

   But I was afraid [Mr C] would do something to stop us from travelling. 

   I had his authorisation to travel. 

   But I wish he agreed.

8. The reference to Mr C is a reference to the child’s father.  The reference to the authorisation is, it is contended on behalf of the Applicant, a reference to an authorisation given by the child’s father in 2014 in relation to the mother’s request to remove the child from Brazil for the purpose of a holiday visit to Disneyland:  that trip did not in fact, it seems, eventuate.

9. As a consequence of this communication between the Respondent and the paternal grandmother, it appears that the child’s father became aware, on or about 6 February 2015, that the child had been removed from Brazil. 

10. The material suggests that, on about 8 September 2015, the child’s father signed a request for the child’s return to Brazil under the provisions of the Convention on the Civil Aspects of International Child Abduction, a convention to which both Australia and Brazil are contracting states.

11. Given the information that the child was then in Scotland, it appears the Application and/or request was forwarded to the Scottish Central Authority. 

12. Legal representatives acting on behalf of the Scottish Central Authority then, by correspondence dated 12 October 2015, contacted the Respondent.  It appears this correspondence was forwarded to the Respondent at an address the Scottish Central Authority clearly thought was that at which she was living with the child.  That correspondence, which is Annexure “HT1” to Ms E’s affidavit, is in the following terms:

    We have received instructions from the Civil Law and Legal System Division of the Scottish Government to seek the return of your daughter, B, to Brazil.  An application has been made to the Scottish Government by the Brazilian Government on behalf of the child’s father, [Mr C].  [Mr C] has made an application under the Hague Convention on the Civil Aspects of International Child Abduction. 

    Prior to raising Court proceedings against you for an order for return of the child to Brazil, we are writing to you to make an initial attempt to resolve the matter by agreement.  We are giving you the opportunity to return the child to Brazil on a voluntary basis before we obtain a Court order. 

    Please reply immediately to this letter confirming that you are making the necessary arrangements to return the child to Brazil, with the return taking place within the course of the next seven days.  Unless we hear from you confirming that you are taking these steps prior to 5pm on Friday, 16^th October, we will raise proceedings in the Court of Session in Edinburgh without any further warning seeking a Court order for the return of the child to Brazil. 

    This matter is complex and you should seek your own independent legal advice. 

    We look forward to hearing from you or your solicitor by return.

13. It is apparent from paragraph 7 of Ms E’s affidavit that the Respondent made contact with the legal representatives for the Scottish Central Authority on 13 October 2015.  That evidence, at least on a prima facie basis, certainly establishes that the Respondent had received the correspondence to which I have just referred - which clearly outlined the impending position of the Scottish Central Authority and the consequences for the Respondent in terms of anticipated legal proceedings by that Central Authority seeking an order for the return of the child to Brazil.

14. Reference to paragraph 7 of Ms E’s affidavit establishes, again at least on a prima facie basis, that the information provided to the Scottish Central Authority’s legal representative by the Respondent was that she was surprised by the father’s request “as he had given his consent to the child leaving Brazil”.  Whilst it is impossible to make any definitive conclusion at this point in time (particularly in the absence of the Respondent) it is, I think, relevant to note this assertion appears to contrast completely with the contents of the WhatsApp conversation to which I have referred earlier.

15. The information recorded by the legal representative for the Scottish Central Authority as having been provided to that person by the Respondent on 13 October 2015 included that “she would not return the child voluntarily”.  The Respondent was then provided with advice to take legal advice. 

16. The information conveyed by the Scottish Central Authority to Ms E (as outlined at paragraph 7 of her affidavit) also includes that, again in summary, it appears the Respondent corresponded or was in touch with the Scottish Central Authority’s legal representatives for a period and, at least as recounted in Ms E’s affidavit, acted in a manner which led them to conclude that it appeared to them that she had accepted she would have to take steps to return the child to Brazil.

17. The communications between the legal representatives for the Scottish Central Authority and the Respondent appear not to have been fruitful.  It seems that, after failing to hear from the Respondent for a period of time, the Scottish Central Authority commenced proceedings in the appropriate court in Scotland.  Subsequent inquiries, though, revealed that the child was no longer present in Scotland.  Consequently, the proceedings there were brought to a conclusion.

18. As it turns out from information obtained by the Australian Central Authority, the Respondent and the child in fact entered this country on 20 October 2015.  That is, about eight days after the correspondence was sent to the Respondent by the legal representatives for the Scottish Central Authority and, on the evidence before me, about a week after she (the Respondent) had telephone communication with that legal representative in relation to the contents of the correspondence and the proposition that an order was to be sought for the child’s return to Brazil.

19. Whilst perhaps unnecessary, it is, I think, also relevant for the purpose of considering whether to proceed to hear the interim Application without notice to the Respondent to note that, at least on a prima facie basis, the mother’s action in removing the child from Scotland and travelling with her to Australia and entering this country on 20 October 2015 are consistent, in one sense, with the reported comment made by her to the legal representative for the Scottish Central Authority on 13 October to the effect that she would not return the child voluntarily to Brazil.

20. It is against this background, then, that Mr Parrott, who appears this morning on behalf of the Applicant, seeks to proceed without notice to obtain interim orders, the effect of which will be to ensure that the child remains in Australia pending the hearing and determination of the Central Authority’s Application for an order returning her to Brazil.

21. There are no orders currently in force of which I am aware which would prevent the Respondent from removing the child from the jurisdiction. 

22. I consider that, if the orders sought are not made on an ex parte basis, the damage or harm which may result if the Respondent repeats what, on a prima facie basis, she appears to have done when notified of impending proceedings by the Scottish Central Authority is that the child will be removed from the jurisdiction and the Application advanced by the Applicant will be rendered nugatory.

23. In essence, there is a very grave risk that there will be a repetition of what happened in Scotland in 2015 with the consequence that the proceedings seeking an order for the return of the child to Brazil will again be thwarted. 

24. Given that any orders made on an ex parte basis must, I consider, properly include, as I have already discussed with Mr Parrott, a provision which accords the parties liberty to apply on the giving of short notice, there is unlikely, in my view, to be any hardship, danger or prejudice to the Respondent or to the child if the orders sought by the Applicant are today made on an ex parte basis.

25. I have taken the opportunity today to take advantage of a recent settlement in the list of Carew J to allocate to this matter a hearing date on 19 July 2016.  It seems to me that the fact that I am able to set a relatively close hearing date for final determination is another relevant factor.

26. For these short reasons - which I consider sufficiently address those of the relevant considerations prescribed under the Rules - I am satisfied that the interim orders sought by the Applicant should be made without notice to the Respondent.  I am also satisfied, given the contents of the Form 2 Application and the affidavit of Ms E to the extent that its contents are relevant, that there is at least a prima facie basis for the orders to be made in the terms sought on an interim basis and that, given the liberty to apply provision which they will include, the Respondent will be afforded the opportunity (should she wish it) to be heard before the allocated hearing date of 19 July of this year, upon her taking appropriate action and giving appropriate notice to the Applicant.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 10 June 2016.

Associate:                 

Date:    10 June 2016