Director-General, Department of Communities and Merrin

[2011] FamCA 90

FAMILY COURT OF AUSTRALIA

DIRECTOR-GENERAL, DEPARTMENT OF COMMUNITIES & MERRIN [2011] FamCA 90

FAMILY LAW - CHILDREN – With whom a child lives – Orders for return of child to New Zealand

APPLICANT: Director General, Department of Communities

RESPONDENT: Ms Merrin

FILE NUMBER: BRC 11808 of 2010

DATE DELIVERED: 7 February 2011

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Bell J

HEARING DATE: 7 February 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms McMillan of Senior Counsel

SOLICITOR FOR THE APPLICANT: Crown Law, Brisbane

FOR THE RESPONDENT: In person

Orders

1. That the child, D K born … May 2001, be returned to the country of New Zealand and for the purposes of giving effect to this order:

a.    That the said child leave the Commonwealth of Australia on or before Monday 21^st March 2011 ;

b.    That pending the said child, D K born … May 2001, returning to New Zealand, the respondent mother, Ms Merrin, 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;

c.    That pending the return of the said child, D K born … May 2001 to New Zealand, the respondent mother, Ms Merrin born … 1976, continue to be restrained and an injunction is hereby issued, restraining her from changing the residence of the said child, D K born … May 2001, from the premises where Ms Merrin and the said child are currently residing namely, …, Queensland;

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 Merrin born … 1976 and the said child D K born … May 2001, on the All Ports Watch Alert System at all international departure points in Australia;

e.    That the said child, D K, born … May 2001, and the respondent mother, Ms Merrin 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 Child Safety 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;

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 child, D K, born … May 2001 to New Zealand, the Registrar of the Family Court shall, upon receipt of a letter from an officer of the Court Services, Department of Child Safety advising of the travel arrangements made for the said child to return to New Zealand, release to the person nominated in the letter, all current passports relating to the 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.

h.    That to facilitate the return of the said child, D K, born … May 2001 to New Zealand the respondent mother is to take all necessary steps to secure a passport for the child urgently and in the event that an additional fee is required to facilitate the urgent issue of the passport that the mother pay the fee;

i.     That the respondent mother, Ms Merrin, pay all the necessary expenses associated with returning the child to New Zealand, including the cost of airfares and departure taxes (if any) for the child to travel from Brisbane International 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 child’s father, Mr K, in returning the child to New Zealand, within two business days of the applicant making a written demand for reimbursement of the said expenses.

j.     Failure of the respondent mother to pay for the return airfare within 24 hours of the finalisation of the child’s passport is deemed a refusal to pay.

k.    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 child in accordance with this order.

1. That all other Applications be dismissed.

2. That there be liberty to apply.

IT IS NOTED that publication of this judgment under the pseudonym Director-General, Department of Communities & Merrin is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 11808 of 2010

Director General, Department of Communities 

Applicant

and

Ms Merrin

Respondent

REASONS FOR JUDGMENT

1. This is an application on the part of the Authority for the return of a child, D K, who was born in May 2001 to his place of domicile and/or residence, being New Zealand.  D is the product of a marriage between the father, Mr K of W in New Zealand, and the mother, Ms Merrin, who were married in April 1995 at New Plymouth.

2. As a result of the aforesaid union, three children were born.  S, born in August 1995; K, born in May 1998;  and the subject child D, born in May 2001, as I have referred to before. 

3. The parties had perhaps a difficult relationship.  They separated on several occasions, but finally, they separated on 20 July or thereabouts, 2004.  The mother, decided to come to Australia.  It was agreed that K would accompany her, and I understand, for a period S did as well. 

4. In October 2006, a parenting order was made by the relevant New Zealand Court, granting to the applicant day to day care of S and D.  If necessary, I find that either the place of domicile and/or permanent residence of the child is New Zealand, and the father has a right of custody in the child.

5. The child, on occasions, came to Australia by consent of the parties.  An agreement was reached wherein certain matters were to be shared between the parties.  The mother complains in her affidavit that in fact the father is not complying with the whole of such agreement, and requests that he do so.  I am indicating in my reasons that it is essential that, if in fact the father wants the support of Courts either here or in New Zealand, he must comply with an agreement which was entered into between the parties, obviously on an arms’‑length basis, and unless there is good reason, he should comply with it.

6. However, the child came over in September, last year.  The mother expressed some concern upon the child getting here for on two bases.  One was head lice, and secondly was his emaciated condition.  She also noted that the emaciated condition consistent showed a lump on his ribcage which was subsequently diagnosed as being a hernia, which it has been recommended that surgical intervention take place.  I understand an appointment either for the operation or for further tests is with a paediatrician on 18 March, unfortunately here in Australia.

7. The mother opposes the return of the child, as such application be instituted, of course, by the director general of Department of Communities, who is the applicant authority, indicating that the child;  (a) does not wish to return, or (b) that he is in a grave risk of physical maltreatment should he return to the father.

8. I make it quite clear that the mother has quite properly put before me complaints concerning the attitude of the father towards the child, but that such complaints generally, save for the two that I have referred to here and before, predated the agreement which she entered into for the child to come to Australia and return, which she has complied with.  The ones which have not predated that are, as I have said, the head lice, his emaciated condition, and the hernia, which became apparent subsequent to September, his coming to Australia then.

9. I look at the first of the matters, and that is the child’s wish to not return to New Zealand.  It is a very high standard which has to be proved, and it must be shown that the child objects to the return to his place of domicile for the purposes of that Court determining his residence.  I myself think that is a very difficult matter for a child to decide.  If, in fact, he parroted that type of thing to me, him being nine years of age in this case, I would have extreme doubts as to whether or not he had been coached.  But in this case, we have had the opportunity of a family report order, and I compliment the family consultant on getting this matter done remarkably quickly.  I think it was ordered on 11 January or thereabouts of this year, and the report has been put before me.  It is a report which dots every “i” and crosses every “t” as far as I am concerned, and in particular, a report of some length, being 33 paragraphs in length.

10. The family consultant quite properly has described the child (see paragraph 16) as a gregarious, happy, and talkative child, well dressed and, whilst appearing thin, he did not appear emaciated.  He was, according to the family consultant, reaching his developmental milestones.  He had those special needs, although the mother is concerned that he is suffering from ADHD, and this may be the case. 

11. At paragraph 19, under the subheading The Views of the Child as to Whether the Child Objects to Being Returned to New Zealand, it appears on the face of it that the child does object to being returned to New Zealand (see paragraph 20), wherein he says “I made my decision that I wanted to stay.”  It would be “sad” if he was forced to return, and that he would “cry and throw a tantrum.”  However, and this, I think, is a great moment, equally he said, he would be sad about living without his father, in New Zealand, and he would miss him, and further that he has lived in New Zealand all his life.  Here is a young boy of only nine years of age, who is put in a most invidious position of having to decide between two parents whom he loves dearly, and this is a tragic thing for him, that that amount – unwittingly, I might say – this pressure is being brought to bear upon him, and the pressure is for him to determine whether he decides to remain in Australia or not.  For very good reasons, I cannot accept that this is a considered decision of the boy.  He doesn’t know.  But obviously, he is torn between his parents, he loves both of them.  S might be a bit of a handful, knocks him around, but it also appears that he knocks her around on occasions too as well.  And as a result thereof, I do not believe that that ground has been anywhere near made out.

12. Whether the child will be exposed to physical or psychological harm – once again, this matter is now in the hands of the relevant department of children in New Zealand.  Whilst there has not been a great degree of contact between the Department of Children’s Safety here in Queensland and H, that matter will be taken in hand by the department here, and the New Zealand department will, of course, keep a watchful eye on all of the matters surrounding the child’s welfare. 

13. I am not satisfied, on the material before me, that the matters to which the mother has referred, ie, she says emaciation.  The family consultant says that he is slim.  The head lice which, regrettably from my years of experience in this Court, can appear overnight anywhere, and his hernia, as such that that would concern me sufficiently that I would be satisfied that he would be exposed to that degree required under the Act. 

14. In all the circumstances, I order that the child be returned to New Zealand.

15. I am quite satisfied on the material before me that the father would have exercised his rights, say, for the, as I find, unlawful detention of the child in Australia. 

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell delivered on 7 February 2011.

Associate: 

Date: