Department of Communities (Child Safety Services) and Kentwell

[2010] FamCA 639

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF COMMUNITIES (CHILD SAFETY SERVICES) & KENTWELL [2010] FamCA 639

FAMILY LAW – CHILD ABDUCTION – Hague Convention application – Both children brought to Australia from New Zealand – Where habitual residence of the children was New Zealand – Where removal of the children constituted a breach of the father’s custody rights – Where the mother has failed to file material as directed – New Zealand is a convention country to which the Hague Conventional civil aspects of international child abduction applies – Both children ordered to be returned to New Zealand

APPLICANT: Director-General, Department of Communities (Child Safety Services)

RESPONDENT: Ms Kentwell

FILE NUMBER: BRC 3936 of 2010

DATE DELIVERED: 12 July 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Barry J

HEARING DATE: 12 July 2010

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Parrott, Solicitor of Crown Law appearing for the Applicant

SOLICITOR FOR THE RESPONDENT: The Respondent Mother appearing in person

Orders

IT IS ORDERED THAT:

1. That the children, A born … February 2005 and M born … July 2006, be returned to the country of New Zealand on or before 26 July 2010 and for the purposes of giving effect to this Order:

   a.that the said children leave the Commonwealth of Australia on or before 25 July 2010;

   b.that pending the said children, A born … February 2005 and M born … July 2006, returning to New Zealand, the Respondent Mother, Ms Kentwell, continue to be restrained and an injunction is hereby issued, restraining her from removing or attempting to remove the said children from the Commonwealth of Australia;

   c.that pending the return of the said children, A born … February 2005 and M born … July 2006, to New Zealand, the Respondent Mother, Ms Kentwell born … 1987, continue to be restrained and an injunction is hereby issued, restraining her from changing the residence of the said children, A born … February 2005 and M born … July 2006, from the premises where the mother and the said children are currently residing namely, …;

   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 Kentwell born … 1987 and the said children A born … February 2005 and M born … July 2006, on the All Ports Watch Alert System at all international departure points in Australia;

   e.that the said children, A born … February 2005 and M born … July 2006, and the Respondent Mother, Ms Kentwell 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 advising of the travel arrangements made for the said children 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 to facilitate the return of the said children, A born … February 2005 and M born … July 2006, to New Zealand, Ms E, Department of Communities or her nominee, be at liberty to release all current passports relating to the children for the purposes of the said children's return to New Zealand; and release the Respondent Mother’s passport to her or her nominee upon request.

   h.that the Respondent Mother, Ms Kentwell, pay all the necessary expenses associated with returning the children to New Zealand, including the cost of airfares and departure taxes (if any) for the children to travel from Brisbane Airport to New Zealand, and in the event the Respondent Mother fails or refuses to pay these expenses; the Respondent Mother pay to the Applicant the necessary expenses incurred by or on behalf of the Applicant and the children’s father, in returning the children to New Zealand, within two (2) business days of the Applicant making a written demand for reimbursement of the said expenses;

   i.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 children in accordance with this Order;

   j.that paragraphs 1, 2, 4 and 5 of the Orders of the Honourable Justice Murphy made 17 May 2010 be discharged forthwith.

2. That all other applications be dismissed.

3. That there be liberty to apply.          

IT IS NOTED that publication of this judgment under the pseudonym Department of Communities (Child Safety Services) & Kentwell is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 3936 of 2010

DEPARTMENT OF COMMUNITIES (CHILD SAFETY SERVICES)

Applicant

And

MS KENTWELL

Respondent

REASONS FOR JUDGMENT

1. This is an application pursuant to the Hague Convention legislation in relation to two children aged 5 and 3.

2. The respondent to the application is the children’s mother.

3. I am satisfied that prior to the removal of the children to this country the children were habitually resident in New Zealand and the father had rights of guardianship.

4. The mother arrived in Australia for the second time in early July 2009.

5. A form 2 application initiating proceedings was not filed until 28 April 2010.  I am satisfied that the reason for the delay in this matter was an email forwarded by the mother dated 22 August 2009 which is in the following terms:

   Hi, it’s [the mother].  Sorry it’s taken so long to get back to you with dates.  I’m going to try and come back in October.  Not sure of exact dates yet though.

   So I do not need to read the balance of that email.

6. A further email was sent on 17 October 2009 from the mother:

   Hi there.  Well, something has happened which requires me to return to New Zealand for personal health reasons, so because of this I’ll be returning to New Zealand.  And because it’s so close to [A’s] starting school, I will be returning to live.

   And she went on to refer to certain personal matters.

7. The mother was directed to file material in this matter and has failed to do so.  She has appeared in person on today’s date.  She has been unable to obtain legal representation.  She has indicated to me that if the children are ordered to be returned to New Zealand she will be accompanying them.  I have explained to her as best I can that I am not making any determination in relation to parenting rights to the children.  I am simply enforcing the International Convention known as the Hague Convention which deals with the question of forum:  which country is the property country to determine parenting issues?

8. There are proceedings still on foot in New Zealand initiated by the father.

9. The material relied on on behalf of the applicant consists of the initiating application in form 2 of 28 April this year, an amended order of 17 May, an affidavit of the father of the child, an affidavit of Ms L and the case summary document.

10. The mother does not produce any material upon which she intends to rely.  She has not sought to challenge any of the material presented by the applicant.

11. In the case outline document, at the bottom of page 2 under the heading Conclusions Advanced, it is submitted the following finding’s conclusions will be submitted to the court.  It has been established that:

    (a) the habitual residence of the children as at 1 July 2009 was New Zealand;  (b) New Zealand is a convention country to which the Hague Conventional civil aspects of international child abduction applies;

    (c) the requesting applicant, the father, possesses rights of custody in respect to the children;

    (d) the removal of the children on or about 1 July 2009 breached the father’s rights of custody in relation to the children, which he was exercising at that time or would have exercised but for the removal;

    (e)and the alternative retention of the children in Australia by the mother on or – on at the latest of 16 February 2010 breached the father’s rights of custody in relation to the children which he was exercising at that time or would have exercised but for the retention.

12. I accept those matters have been established.  It is a straightforward case.  There is no basis for exercising or considering any residual discretion.  It just simply does not arise as an issue.  Draft orders have been produced.  I propose to make orders as per pages 1 and 2 of that document.  The children are to leave the Commonwealth of Australia on or before 25 July.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry

Associate: 

Date:  12 July 2010