Department of Family and Community Services and Dalvi

[2012] FamCA 700

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF FAMILY AND COMMUNITY SERVICES & DALVI [2012] FamCA 700

FAMILY LAW – CHILDREN – Hague Abduction Convention – Ex Parte Injunctions

APPLICANT: Department of Family & Community Services

RESPONDENT: Ms Dalvi

FILE NUMBER: SYC 4179 of 2012

DATE DELIVERED: 20 July 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ryan J

HEARING DATE: 20 July 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Mitchell of Department of Family & Community Services

SOLICITOR FOR THE RESPONDENT: No appearance for or on behalf of the respondent

Orders made ex parte

1. That until further order the respondent mother, Ms Dalvi born … 1979 her servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the said child M (male) born … June 2011 from the Commonwealth of Australia and it is requested that the Australian Federal Police give effect to this order.

2. That until further order, the respondent mother, Ms Dalvi born …1979 be restrained from leaving the Commonwealth of Australia and that the Australian Federal Police give effect to this order.

3. That until further order, the names of the respondent mother, Ms Dalvi born … 1979 and the child M (male) born … June 2011 be placed upon the Watch List in force at all points of arrival and departure in the Commonwealth of Australia.

4. That unless the Court otherwise orders the names of the child and the respondent on the Watch List shall lapse 12 months from the date the names were placed on the Watch List.

5. That until further order, the respondent mother, Ms Dalvi born … 1979 surrenders forthwith to the Registrar of the Family Court of Australia, all current passports and air tickets relating to herself and the said child M (male) born … June 2011.

6. That the respondent mother, Ms Dalvi born … 1979 be served with sealed copies of the Application, supporting affidavit of 17 July 2012 and of these orders no later than 24 July 2012 and that the application be returnable before this Court for mention before Ryan J on 27 July 2012 at 10.00 am and for hearing before Fowler J on 17 August 2012 at 10.00 am.

7. That sealed copies of this Application and these orders be served upon the Commissioner, Australian Federal Police.

8. That the parties are at liberty to apply herein on twenty-four hours notice.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Department of Family and Community Services & Dalvi 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 SYDNEY

FILE NUMBER: SYC 4179 of 2012

Department Of Family And Community Services

Applicant

And

Ms Dalvi

Respondent

REASONS FOR JUDGMENT

1. These reasons were delivered orally.

2. This is an application commenced by the Central Authority in relation to a child, M, who was born in June 2011 in the United States (“the child”).  The application is brought pursuant to the regulations which support the Hague Convention on the Civil Aspects of International Child Abduction (“Abduction Convention”).  In support of the application there is an application filed 17 July 2012 and an affidavit by the solicitor with the conduct of the matter sworn the same day. 

3. Attached to the affidavit is an affidavit sworn by Mr Dalvi, who is the requesting father.  He deposes to the facts referred to by the solicitor this morning in support of the application for ex parte orders, including not only that the application proceed ex parte but also the suite of injunctions there proposed.  In short, there is substantial evidence before the Court which would support an assertion that the child immediately prior to his removal to Australia on 17 February 2012 was habitually resident in the United States.  Nextly, that the mother brought the child to Australia with the father’s consent, but for a limited purpose, namely, a vacation and that she and relevantly the child were due to return to the United States on 17 April 2012.

4. In that regard, it is the father’s evidence that the mother and child travelled on return tickets and the mother is due to commence a position as a doctor at L Medical School in July 2012.  There is evidence that the mother communicated to the father on 30 April 2012 that she would not be returning either herself or return the child to the United States and had decided that they would remain in Australia.  Depending on the evidence it would seem to be that there is a strong argument that as at either 17 April 2012 or about 30 April 2012 the mother wrongly retained the child in Australia.

5. Although the mother’s and child’s whereabouts are known, what is not known is how she may respond upon learning that the father has initiated the Abduction Convention application.  It is strongly in the interests of this child that his presence in this country is secured pending disposition of the abduction proceedings.  The orders sought ex parte would achieve that and would ensure that the Court is able to give effect to whatever orders are ultimately made in relation to the Abduction Convention application. 

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 20 July 2012.

Associate:     

Date:              22 August 2012