DEPARTMENT OF FAMILY AND COMMUNITY SERVICES & ROBERTS

[2012] FamCA 525

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF FAMILY AND COMMUNITY SERVICES & ROBERTS [2012] FamCA 525

FAMILY LAW - CHILD ABDUCTION – Hague Convention – whether the child has been wrongfully retained in Australia by the Father 

FAMILY LAW - INJUNCTIONS – Ex Parte Order - where the father is restrained from removing the child from Australia

APPLICANT: Director-General, Department of Family And Community Services

RESPONDENT: Mr Roberts

FILE NUMBER: SYC 3570 of 2012

DATE DELIVERED: 20 June 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ryan J

HEARING DATE: 20 June 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Mitchell

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

Orders

1. That until further order the respondent Father, MR ROBERTS born … July 1957 his 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  K (female) born … April 1999 from the Commonwealth of Australia and it is requested that the Australian Federal Police give effect to this order by placing the name of the said child on the Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Airport Watch List until the Court orders its removal.

2. That until further order, the respondent Father, MR ROBERTS born … July 1957 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 respondent Father, MR ROBERTS born … July 1957 surrenders forthwith to the Registrar of the Family Court of Australia, all current passports and air tickets relating to himself and the said child K (female) born … April 1999.

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

5. That the respondent Father, MR ROBERTS born … July 1957 be served with sealed copies of the application and the annexures and of these orders no later than 5.00 pm on 25 June 2012 and that the application be returnable before this Court at 2.15 pm on 28 June 2012.

6. The matter is listed for final hearing before Ryan J for one day to commence at 10.00 am on 19 July 2012.

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 & Community Services & Roberts 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 3570 of 2012

Director-General, Department of Family and Community Services

Applicant

And

Mr Roberts

Respondent

REASONS FOR JUDGMENT

1. These reasons were delivered orally.

2. This is an application by the Department of Family and Community Services as the Central Authority in this state to give effect to the Hague Convention on the Civil Aspects of International Child Abduction.  The application and evidence relied upon is found in the affidavit of Ms Peters sworn 19 June 2012.  The gravamen of the application is that it is alleged that the respondent has wrongfully retained K (“the child”), born … April 1999, in this country. 

3. Orders were made at the Local Court by consent in July 2010 which relevantly provided that the parents have joint parental responsibility of their two children and that the mother be permitted to relocate the residence of the children from Australia to New Zealand, which she did.  Provision is made in the orders for the children to spend time with the father in Australia.  This occurred most recently over the Easter 2012 holiday break.  The children were not returned at the conclusion of the week they were to remain with him.  The elder of the two children, the child B, returned last week.  The child K, who is the younger of the two children, remained in Australia.  It is asserted that the mother did not consent to the child’s retention in Australia and there is, prima facie, a clear case for the application of the convention on the basis that the child has been wrongfully retained.

4. Various injunctions are sought in order to preserve the Court’s capacity to make orders in relation to the child.  Although there is no evidence that the respondent has sought to abscond with the child, on the applicant’s case he has flouted orders made as recently as 2010.  One cannot discern how he might react upon being informed that the mother has initiated this process.  There is a strong case for protection in the sense of the child’s presence in Australia being preserved and there being no risk that the father might take steps which would make it even more difficult for the Court to make orders in relation to the child. 

5. The application for ex parte relief is made out. 

6. I make Orders 1, 2, 3, 6, 7, 8 and 10.  In relation to Order 7, the application will then be returnable before this Court at 2.15 pm on 28 June 2012.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 20 June 2012.

Associate:     

Date:              9 July 2012