DEPARTMENT OF COMMUNITIES, CHILD SAFETY AND DISABILITY SERVICES & WELLS

[2016] FamCA 1050

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF COMMUNITIES, CHILD SAFETY AND DISABILITY SERVICES & WELLS [2016] FamCA 1050

FAMILY LAW – CHILD ABDUCTION - Child retained in Australia – Application for the child to return to New Zealand

Family Law (Child Abduction Convention) Regulations 1986

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

RESPONDENT: Ms Wells

FILE NUMBER: BRC 11811 of 2016

DATE DELIVERED: 2 December 2016

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 2 December 2016

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Fitzgibbon, McInnes Wilson Lawyers

COUNSEL FOR THE RESPONDENT: Mr Ehlers

SOLICITOR FOR THE RESPONDENT: Steindl Bradley

Orders

IT IS ORDERED BY CONSENT BY WAY OF FINAL ORDER THAT

1. The Respondent Mother, Ms Wells, born … 1972, surrender forthwith to an officer of the Department of Communities, Child Safety and Disability Services all current passports relating to herself and the child, B, a female, born … 2009.

2. The child B, a female, born … 2009 be returned to New Zealand;  and for the purposes of giving effect to this Order:

   (a)the said child leave the Commonwealth of Australia on or before 20 December 2016;  and

   (b)       the said child arrive in New Zealand on or before 21 December 2016;

   (c)pending the said child returning to New Zealand, the Respondent Mother, Ms Wells, born … 1972, continue to be restrained and an injunction is hereby issued, restraining her from removing or attempting to remove the said child from the Commonwealth of Australia;  and

   (d)pending the said child’s return the Respondent Mother, Ms Wells, born … 1972, be restrained and an injunction issue, restraining her from changing the said child’s usual day to day residence from the premises where she and the said child are currently residing, namely, C Street, Suburb D, in the State of Queensland;  and

   (e)subject to sub-clause (f) below, the Commissioner of the Australian Federal Police and all Federal Agents of the Australian Federal Police place the names of the Respondent Mother, Ms Wells, born … 1972, and the said child, B, a female, born … 2009, on the Family Law Watchlist at all international departure points in Australia for a period of two (2) years;  and

   (f)the child, B, a female, born … 2009 and the Respondent Mother, Ms Wells, born … 1972 be removed from the Family Law Watchlist by officers/agents of the Australian Federal Police 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 said child to return to New Zealand from 12.00 am on the date nominated for the said travel in the letter;  and

   (g)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;  and

   (h)to facilitate the return of the said child to New Zealand, Ms E, Department of Communities, Child Safety and Disability Services or her nominee be at liberty to release, all current passports relating to the said child for the purposes of the said child’s return to New Zealand;  and release the Respondent Mother’s passport to her or her nominee upon request;  and

   (i)liberty to apply be granted to the Applicant 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 said child in accordance with this Order and pursuant to the Central Authority’s obligation under Regulation 20 of the Family Law (Children Abduction Convention) Regulations 1986;  and

   (j)        each party bear their own costs.

3. 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  & Wells 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 11811 of 2016

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

Applicant

And

Ms Wells

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. On 23 November 2016, the Director-General of the Department of Communities, Child Safety and Disability Services in his capacity as the State Central Authority, pursuant to the Family Law (Child Abduction Convention) Regulations 1986, filed an Application seeking orders for the return of the child B, born … 2009, to New Zealand. 

2. The requesting Applicants are the child’s guardians, Mr and Ms F, who are New Zealand nationals. 

3. The Respondent to the Application is Ms Wells, the child’s mother, who at present is living in Australia. 

4. The Application is supported by the child’s biological father who lives in New Zealand also. 

5. It appears that orders were made by consent in New Zealand on 19 October 2015.  By those orders, the Fs were appointed as additional guardians and were granted leave to apply for a parenting order in relation to the child.  Also, by consent, it was ordered that they have the role of providing day-to-day care of her, with her time with her parents to occur at times and places as agreed between them and the guardians (if I might refer to them as that).

6. The circumstances relating to the child’s retention in Australia from after the end of August of this year are as contained in the Application filed by the Central Authority.  I incorporate that summary from under the heading ‘Details Concerning Child’s Removal or Retention’, into these Reasons. 

7. It is, therefore, obvious that the Application before the Court proceeds on the basis of a contention that the mother has caused the child to be wrongfully retained in Australia from late August 2016 onwards.

8. I accept, on the evidence before me, that it could not be concluded that the guardians consented to her remaining in Australia after that date. 

9. Given the parties consent to an order which provides for the child’s return to New Zealand before the end of this calendar year, it is unnecessary, I consider, to discuss in any particular detail those legislative provisions which apply to the determination of applications such as this.

10. It is, I think, sufficient simply that I state that I am satisfied that the State Central Authority has established the matters prescribed by sub-Regulation 16 (1A) of the Regulations:  namely, that the child is younger than 16 years;  and habitually resided in New Zealand immediately prior to her retention in Australia from late August 2016;  and that the guardians had and have rights of guardianship in relation to her and had those immediately prior to her retention in Australia;  and that her retention in this country is in breach of their rights of custody and guardianship:  and that, at the time of her retention in this country, they were actually exercising rights of custody, or would have had she not been retained here.

11. Thus, I conclude, on the evidence before me, noting the consent of the parties to the child’s return to New Zealand, that the State Central Authority has satisfied the Court that the child’s retention in Australia after late August 2016 was wrongful. 

12. It is, therefore, appropriate that orders be made in terms of the Minute provided to the Court with the consent of the parties. 

13. I make orders in the terms of that Minute signed by me and placed with the papers.

I certify that the preceding 13 (thirteen) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 2 December 2016.

Associate: 

Date:              7 December 2016