DEPARTMENT OF COMMUNITIES, CHILD SAFETY AND DISABILITY SERVICES & RADKE

[2016] FamCA 842

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF COMMUNITIES, CHILD SAFETY AND DISABILITY SERVICES & RADKE [2016] FamCA 842

FAMILY LAW – CHILDREN – Where application for restraining the father from removing the child from the Commonwealth of Australia – where the application was to ensure that the father was not able to depart Australia prior to an application under the Hague Convention – where previous attempts to bring an application in Australia and Singapore has been thwarted by the father spending short periods of time in the various countries – where father took child to Country D on holiday and did not return the child to the mother – where the father has abducted the child –  where the father location is unknown, service of the Hague Convention proceedings is problematic

FAMILY LAW – CHILDREN – Best interests – where an order needs to be one which is in the best interests of the child – where withholding the child from the mother is likely to harm the child – where it is in the child’s best interests that the application be granted

APPLICANT: Department of Communities, Child Safety and Disability Services

RESPONDENT: Mr Radke

FILE NUMBER: BRC 10458 of 2016

DATE DELIVERED: 24 October 2016

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Tree J

HEARING DATE: 19 October 2016

REPRESENTATION

SOLICITORS FOR THE APPLICANT: McInnes Wilson Lawyers

THE RESPONDENT: No appearance

IT IS NOTED that publication of this judgment by this Court under the pseudonym < Department of Communities, Child Safety and Disability Services & Radke 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 10458/2016

DEPARTMENT OF COMMUNITIES, CHILD SAFETY AND DISABILITY SERVICES & RADKE

Applicant

And

Mr Radke

Respondent

REASONS FOR JUDGMENT  

1. On 19 October 2016 I heard an urgent oral ex parte application, at the conclusion of which I made orders restraining Mr Radke (“the father”) from removing or attempting to move B (born … 2014, and hence presently 2 years of age) (“the child”) from the Commonwealth of Australia and the usual ancillary orders attendant upon such an order, including the requirement that he surrender the child’s passport.  These are my reasons for making those orders.

2. Perhaps in large part because of the urgency with which the matter came before me, the material relied upon was markedly deficient.  However, doing the best I can, it appears as though the father and Ms C (“the mother”) were at some stage in a relationship to which the child was born.  I infer that during the course of the relationship, both the mother and father were resident in Poland.  It appears as though, save as I shall shortly discuss, both remain resident there, but it seems they have likely separated, with the child thereafter remaining living with the mother.  I do not know whether that arrangement was regularised by orders, and if so, what they contain.  Although there was tendered into evidence before me an extract of the Polish Family and Guardianship Code of 25 February 1964, I do not know whether the application of its provisions can be varied by order, but on the assumption that they cannot, whether it permits one party to unilaterally vary the residence of a child.

3. At all events, with the mother’s agreement, on 5 August 2016 the father took the child to Country D for a holiday.  His plan was to visit his sister who lives in City E in that country.  On 11 August 2016, the father contacted the mother.  However it appears as though after this time he has not made contact with her, and the mother’s attempt to contact him or other members of his family has not been successful.  The mother then reported the matter to police in Poland.

4. On 9 September 2016 the mother was advised that the child was in Australia, and that she should make an application under the Hague Convention for her return.

5. On 26 September 2016 the Commonwealth Central Authority received an incomplete application from the Polish Central Authority, which I infer is the document in evidence before me.  It is incomplete in a number of material respects.

6. Before the Commonwealth Central Authority could act upon the application, it was advised that on 30 September 2016, the father and child had boarded a flight to Singapore.  The Commonwealth Central Authority made an urgent transfer of the application to the Singapore Central Authority, however the father departed Singapore on 2 October 2016, before the Singapore Central Authority had brought any application.

7. On 17 October 2016 the Commonwealth Central Authority was advised that the father had returned to Australia, and in evidence before me was the father’s incoming passenger card for that entry into Australia which disclosed that he was returning from Thailand but only intended to stay in Australia for six days.  Curiously, although he entered Australia at Darwin, he gave his intended address in Australia as the F Hotel, which, I was told from the bar table, is not a hotel in Darwin, but rather Melbourne.  Therefore his present whereabouts in Australia are unclear, but appear to be likely either in the Northern Territory or Victoria.

8. To complete the chain of the father’s movement, it appears as though he first arrived in Australia on 16 August 2016 from Country G to Melbourne, and that it is likely that when he departed Singapore on 2 October, he travelled to the Country H, as the evidence before me shows that he left Country H to travel to Australia on 18 October.

9. The evidence does not permit me to reach any conclusion as to why the father is travelling so much, but one inference might be that he is attempting to only spend short periods of time at destinations so as to minimise the prospect of an application under the Hague Convention in fact being commenced while he is present in any one country.

10. There can be no doubt that the father has abducted the child, and that he has no intention on facilitating, at least in the short term, the child returning to the mother.  She has now not seen the child since 5 August 2016, a period well in excess of two months.  The mother has not heard from the father or child for almost all of that period.

11. The purpose of the urgent oral application was to ensure that the father was not able to depart Australia prior to an application under the Hague Convention being brought in Australia.  As has been seen, attempts to bring such an application both in this country and in Singapore have been previously thwarted by the father spending only short periods of time in the various countries (accepting that, in fact, a primary reason for the inability to bring the application in Australia was the delay in the Commonwealth Central Authority receiving the application from Poland, which in in any event was incomplete.

12. Before me the applicant Department proffered its undertaking, as a condition of any orders granted, that it would bring an application under the Hague Convention within 7 days of any orders being made.  The purpose of the application was, as I have indicated, therefore to prevent the father from leaving Australia before that application could be filed and the proceedings thereby commenced.  In a sense, the purpose of the application was to preserve the subject matter of that contemplated litigation, namely the child, within the jurisdiction of this court.

13. Whilst accepting that is the purpose of the application, nonetheless the order needs to be one which is in the best interests of the child.

14. As to that, I am well satisfied that the child is likely to have had a meaningful relationship with the mother prior to leaving Poland, and the absence of the mother from the child’s life is likely to be a source of anxiety and distress.  In that respect I note that the child was still being breast fed as at 5 August, and no doubt the comfort which it afforded is being missed by the child.

15. I am presently satisfied that the father does not intend, at least in the short to medium term, to facilitate a relationship between the child and mother, and is deliberately withholding the child from her.  I am satisfied that that is likely to harm the child.  I give that consideration great weight.

16. Unfortunately, otherwise the material does not enable me to make even tentative or provisional conclusions in relation to any of the other considerations listed in s 60CC.  However the critical circumstance in this case is the need to preserve the presence of the child in Australia so that proceedings under the Hague Convention can be commenced.

17. At the hearing I was troubled that the practical effect of the order will be to prevent the father and child from leaving the country, with the prospect that the father will not understand why that is so.  Other than speculation, there is no basis upon which I could predict which port he is likely to be prevented from leaving, or what he will thereafter do.  He will likely forfeit his airfare, and thereafter have additional costs of accommodation.  Given that his whereabouts remain unknown, service of the Hague Convention proceedings on him may be problematic.  If the proceeding ultimately is not successful, it is likely that the father will have been put to great expense for accommodation and the like whilst unable to leave Australia.  To my mind that raised the real prospect that the applicant should be required to proffer an undertaking in the usual terms as to damages, as a further condition for the making of any order.  However that was opposed by the solicitor for the applicant, who indicated that if such an undertaking were required, the Director-General of the applicant would refuse to give it, in consequence of which the child would be permitted to leave the country.  In my view, the child leaving the country, with the real prospect that the father would never return to this country, and may thereafter tailor his travel to avoid Hague Convention countries, could not possibly be in the child’s best interests.

18. Ultimately I was satisfied that orders as sought by the Department were in the child’s best interests and made them.  Further, the Department did not oppose an order requiring the service of the orders upon the father by email (an email address was provided by the father on his incoming passenger card) and perhaps by Facebook as well, if the father maintains a Facebook account.

19. Further, any inconvenience occasioned to the father by virtue of the orders can be sufficiently accommodated by affording him liberty to apply on 24 hours’ notice, and in any event, by making the applicant’s oral application listed shortly before another judge in order that the father may have an opportunity to then be heard, including as to whether or not any further order should be preconditioned upon an undertaking as to damages.  In my view, such conditions sufficiently ameliorate any inconvenience which the father may suffer as a result of the orders, particularly if he wishes to try to demonstrate that the factual matters upon which the court proceeded were erroneous, incomplete or misleading.

20. For those reasons I made the orders which I did on 19 October 2016.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 24 October 2016.

Associate:

Date: 24 October 2016