DEPARTMENT OF COMMUNITIES, CHILD SAFETY AND DISABILITY SERVICES & MOODY

[2013] FamCA 163

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF COMMUNITIES, CHILD SAFETY AND DISABILITY SERVICES & MOODY [2013] FamCA 163

FAMILY LAW – CHILD ABDUCTION - Hague Convention - Where the Respondent Mother consents to the return of the child to New Zealand - Where the Court is satisfied that the making of a return order is justified

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

APPLICANT: Department of Communities, Child Safety and Disability Services

RESPONDENT: Ms Moody

FILE NUMBER: BRC 1576 of 2013

DATE DELIVERED: 19 March 2013

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 19 March 2013

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Parrott

FOR THE RESPONDENT: In person

Orders

IT IS ORDERED BY CONSENT

1. That the Respondent maternal grandmother, Ms A, be removed as a party to this application.

2. That the children, B born … August 2004 and C born … July 2005, be returned to the country of New Zealand and for the purposes of giving effect to this order:

   (a)That the said children leave the Commonwealth of Australia on or before 20 March 2013;

   (b)That pending the said children, B born … August 2004 and C born … July 2005, returning to New Zealand, the respondent mother and maternal grandmother, Ms Moody and Ms A, continue to be restrained and an injunction is hereby issued, restraining them from removing or attempting to remove the said children from the Commonwealth of Australia;

   (c)That pending the return of the said children, B born … August 2004 and C born … July 2005 to New Zealand, the respondent mother, Ms  Moody born … 1968 and maternal grandmother, Ms A continue to be restrained and an injunction is hereby issued, restraining them from changing the residence of the said children, B born … August 2004 and C born … July 2005, from the premises where Ms Moody and Ms A and the said children are currently residing namely, D Street, E suburb;

   (d)That subject to sub-paragraph (e) below, the Commissioner of the Australian Federal Police and all Federal Agents of the Australian Federal Police retain the names of the respondent mother, Ms Moody born … 1968 and maternal grandmother, Ms A and the said children B born …August 2004 and C born … July 2005, on the All Ports Watch Alert System at all international departure points in Australia;

   (e)That the said children B born … August 2004 and C born … July 2005, and the respondent mother, Ms Moody and maternal grandmother, Ms A be removed from the All Ports Watch Alert System by officers/agents of the Australian Federal Police upon receipt of a letter from an officer of the Court Services, Department of Communities, Child Safety & Disability advising of the travel arrangements made for the said child to return to New Zealand, from 12.00 am on the date nominated for the said travel in the letter;

   (f)That 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;

   (g)That liberty to apply be granted to the applicant to seek any further orders necessary to allow him to make such arrangements as are necessary to facilitate and ensure the return of the child in accordance with this order.

   (h)That paragraphs 1, 2, 3, 6 and 7 of the orders of the Honourable Justice Kent made 8 March 2013 be discharged forthwith.

3. That all other Applications be dismissed.

4. That there be liberty to apply.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Department of Communities, Child Safety and Disability Services & Moody 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 1576 of 2013

DEPARTMENT OF CHILD  SERVICES

Applicant

And

Ms Moody

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. By Application pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (Cth) filed on 6 March 2013 the Director-General, Department of Communities, Child Safety and Disability Services sought orders for two children, namely B, born in August 2004 and C, born in July 2005 to be returned to the country of New Zealand.

2. The parties named as respondents to that application are Ms Moody, the children’s Mother, and Ms A, the children’s maternal grandmother. In the event the maternal grandmother is no longer a necessary party to the proceedings. It would seem that the children were initially residing with her, but it is not in issue that they now reside with their Mother, Ms Moody, in G Town and as Ms A has not yet been served and is no longer a necessary party I have made an order giving effect to deleting her as a respondent to these proceedings.

3. On the Form 2 Application filed 6 March 2013 and the material in support of that Application it is clear that the relevant elements in relation to the making of a return order pursuant to the Regulations are made out.  Specifically, I am satisfied and find that the children were habitually resident in New Zealand prior to their retention in Australia on 18 December 2012.  I am satisfied that under the law of New Zealand, as deposed to by an expert in the Applicant’s case, the requesting father of the children, Mr F, had rights of custody under the Care of Children Act 2004 New Zealand and but for the children’s wrongful retention would have exercised those rights.

4. I am satisfied that the Applicant makes out all the relevant elements under the Regulations for the making of the return order and in the event the Respondent Mother does not oppose the making of the orders, nor does she contest any of the material filed in support of the Form 2 Application. 

5. The Respondent Mother confirms on the record this morning that it is proposed that she will return the children on or before tomorrow to New Zealand and, indeed, had attempted to make a return of the children earlier, but by reason of the orders I made on 8 March 2013, which included a PACE alert order, she was not able to actually effect the return of the children earlier.

6. In all the circumstances I therefore make orders in terms of the draft orders which I have discussed with Ms Moody by telephone this morning and with which she expresses her agreement and consent, which are now initialled by me and placed with the file.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 19 March 2013.

Associate:   

Date:  19 March 2013