Department of Communities (Child Safety Services) and Yeats

[2011] FamCA 836

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF COMMUNITIES (CHILD SAFETY SERVICES) & YEATS [2011] FamCA 836

FAMILY LAW – CHILDREN – Hague Convention – Consent Orders made in situation where Mother unrepresented
FAMILY LAW – CHILDREN – Hague Convention – Application and evidence in support not contested by respondent – Onus of proof of requirements under the Regulations discharged by Application – No regulation 16(3) exception – Order for return made

Family Law (Child Abduction) Regulations 1996 (Cth)

APPLICANT: Department of Communities (Child Safety Services)

RESPONDENT: Ms Yeats

FILE NUMBER: BRC 8065 of 2011

DATE DELIVERED: 28 October 2011

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 28 October 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr M Green

SOLICITOR FOR THE APPLICANT: Crown Law

Orders

1. That, subject to and conditional upon paragraph 2 below, the children, B born … 2005 and C born … 2009 (“the said children”) be returned to the country of Country D and for the purposes of giving effect to this order:

   (a)       That the said children leave the Commonwealth of Australia on or before 2 December 2011;

   (b)       That pending the return of the said children to Country D, the respondent mother, Ms Yeats, 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 to Country D, the respondent mother continue to be restrained and an injunction is hereby issued restraining her from changing the residence of the said children from the premises where the respondent mother and the said children are currently residing, namely E Street, Suburb F;

   (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 Yeats born .. 1986 and the said children B born .. 2005 and C born … 2009 on the All Ports Watch Alert System at all international departure points in Australia;

   (e)       That the names of B born … 2005 and C born … 2009 and the respondent mother, Ms Yeats born … 1986 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 Department of Communities (Court Services Child Safety) advising of the travel arrangements made for the said children to return to Country D from 12.00am on the date nominated for the said travel in the letter;

   (f)       That the Marshall 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 to Country D, the Director-General of the Department of Communities or her nominee be at liberty to release any current passport relating to the said children for the purposes of the said children’s return to Country D; and further, to release the respondent mother’s passport to the mother or her nominee upon request;

   (h)       That paragraphs 2 and 3 of the orders of the Honourable Justice Kent made 23 September 2011 be discharged forthwith.

2. The respondent mother’s obligation to comply with sub-paragraph 1(a) of this Order to return the said children to Country D is subject to and conditional upon:

   (a)       the father of the said children, Mr G, paying to the trust account of the lawyers for the respondent mother, namely H Lawyers, I Street, J City, Country D, sufficient monies in cleared funds, but in any event not less than a total amount of $800.00 (“the said funds”) to cover the cost of one-way economy airfares for the respondent mother and the said children from Brisbane Airport to J City, Country D, such funds to be deposited to the nominated trust account not later than 21 November 2011; and

   (b)       the father providing the trustee of the H Lawyerss Trust Account not later than 21 November 2011, an irrevocable authority and direction to pay the said funds to the mother for the purpose of purchasing airfares for herself and the children.

3. The respondent mother will account to the father for the expenditure of any funds paid to her pursuant to paragraph 2(b) by providing the father, Mr G, with copies of tax invoices evidencing the purchase of air tickets for herself and the children and will refund to the father, Mr G the difference between the total amount paid for the three air tickets and $800.00, if any.

4. In the event that the father fails or refuses to comply with the obligations in paragraph 2, then on and from 22 November 2011, but not before:

   (a)       the respondent mother’s obligation to return the said children to Country D is discharged;

   (b)       all of paragraph 1, save and excluding paragraph 1(h), of the order is discharged;

   (c)       the names of B born … 2005 and C born … 2009 and the respondent mother, Ms Yeats born … 1986 be removed from the All Ports Watch Alert System by officers/agents of the Australian Federal Police and the applicant Department of Communities (Court Services Child Safety) or a delegate of the applicant forthwith make a request to the Australian Federal Police to give effect thereto;

   (d)       the Marshall 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;

   (e)       the Director-General of the Department of Communities or her nominee release to the mother or her nominee any current passport relating to the said children and the respondent mother upon request.

5. That all other Applications be dismissed.

6. That there be liberty to apply.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 8065 of 2011

Department of Communities (Child Safety Services)

Applicant

And

Ms Yeats

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This is an Application by the Director-General, Department of Communities in his capacity as the State Central Authority under the Family Law (Child Abduction) Regulations 1996 (Cth) (“the Regulations”). The Application seeks to return two children, namely B, born in 2009, and C, born in 2009, to Country D.

2. The requesting Applicant within the meaning of the Regulations is the children’s father, Mr G, resident in Country D. The Respondent to this Application is the children’s mother, Ms Yeats, who appears today by telephone.

3. The Applicant relies upon an Application filed 9 September 2011, an affidavit of Mr K filed 24 October 2011 and an affidavit of Mr G, filed 27 October 2011. In this matter I made certain Orders on 23 September 2011.

4. Shortly stated, the evidence establishes that in or about 2004, the Mother and the Father commenced a relationship. As noted, B was born in 2005 and C was born in 2009. In early 2011, for a period of about ten days, the Mother came to Australia on a holiday with her parents. Upon her return, the evidence establishes that there was no discussion as to the Mother and the Father separating, and it is the Father’s evidence that whilst the Mother spoke about the prospect of moving to Australia, he was reluctant to do so for a variety of reasons, and he refers to the fact that B had commenced school, and in a recent affidavit refers to the feature that he was undertaking employment.

5. On 2 March 2011, the Mother and both children travelled to Australia on return air tickets which contemplated a return to Country D on 31 March 2011. The Father’s evidence is that the Mother had given him a firm assurance that she would return to Country D, and he told the Mother that he would not allow her to take the children out of Country D permanently. In the event, the children and the Mother did not return to Country D.

6. On 21 April 2011, the Father travelled to Australia in an effort to resolve matters with the Mother, but it seems no agreement was able to be reached. Specifically, the Mother did not then agree for the return of the children or herself to Country D.

7. On 11 July 2011, the Father completed an application for the return of the children to lodge with the Country D Central Authority, which is attached to the subject Application. On 9 September 2011, the Applicant filed the current Application, and, as I have mentioned, on 23 September 2011, I made certain procedural Orders for the filing of material and set the matter down for trial today.

8. On that occasion, the Orders included that the Mother file and serve any material upon which she wished to rely to resist the application on or before 10 October 2011. In the event, the Mother has not filed any material in opposition to the Application, and indeed I am provided with Minutes of Consent signed by the Mother and which she tells me today she understands and has entered into which facilitate, subject to certain conditions, the children returning to Country D.

9. On the unchallenged evidence before me, which I have briefly referred to, I am satisfied that the children the subject of this application are under the age of sixteen years; that Country D is a Convention country within the meaning of the Regulations; that both of the children habitually resided in Country D as at 31 March 2011, which is the date the children were due to be returned in the circumstances briefly mentioned. I am also satisfied that the requesting Applicant, within the meaning of the Regulations, possesses rights of custody in respect of the children, and that the children’s retention in Australia as at 31 March 2011 was in breach of those rights of custody.

10. I am satisfied that at the time of the children’s retention in Australia, the Father was actually exercising rights of custody either jointly or alone or would have exercised those rights had the children not been retained in Australia.

11. In consequence of those findings, I am satisfied that both children have been wrongfully retained in Australia. Thus, the Applicant has met the onus of establishing each of the requirements under the Regulations for an Order for return. No matters are raised by the Respondent so far as reg 16(3) is concerned, nor is there any other evidence before me which would stand in the way of the mandatory return of the children to Country D.

12. In the event, as noted, the Mother has consented to Orders which will achieve that objective. I am therefore satisfied that I ought make Orders in terms of the Minutes of Consent which have been signed by the parties and which are now initialled by me and placed with the file.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 28 October 2011.

Associate: 

Date:  28 October 2011