Director-General, Department of Communities, Child Safety and Disability Services and Faleauto

[2012] FamCA 960

FAMILY COURT OF AUSTRALIA

DIRECTOR-GENERAL, DEPARTMENT OF COMMUNITIES, CHILD SAFETY AND DISABILITY SERVICES & FALEAUTO [2012] FamCA 960

FAMILY LAW - CHILD ABDUCTION - Return Order - Where the parties agree to the Orders to be made - Where the Court is satisfied that the proposed Orders ought be made

Convention on the Civil Aspects of International Child Abduction
Family Law Act 1975 (Cth)
Family Law (Child Abduction Convention) Regulations 1986 (Cth)

APPLICANT: Director-General, Department of Communities, Child Safety and Disability Services

RESPONDENT: Ms Faleauto

FILE NUMBER: BRC 9416 of 2012

DATE DELIVERED: 19 November 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 19 November 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Crown Law

Orders

1. The children, R, born …2008, and J, born …2002, be returned to New Zealand, and for the purposes of giving effect to this order:

   (a)       The said children leave the Commonwealth of Australia on or before 13 December 2012, but no later than 19 December 2012 at the date and time and upon the flight arranged by the requesting father pursuant to sub-paragraph (j);

   (b)       The said children arrive in New Zealand on or before 13 December 2012, but no later than 19 December 2012 at the date and time and upon the flight arranged by the requesting father pursuant to sub-paragraph (j);

   (c)       Pending the children returning to New Zealand, the Respondent Mother, Ms Faleauto, telephone a nominated representative of the Department of Communities, Child Safety and Disability Services each Monday, commencing Monday 25 November 2012, to confirm the children’s continued residence in the Commonwealth of Australia;

   (d)       Pending the said children, R, born …2008, and J, born …2002, returning to New Zealand, the Respondent Mother, Ms Faleauto, continue to be restrained and an injunction hereby issue restraining her from removing or attempting to remove the said children from the Commonwealth of Australia;

   (e)       Pending the return of the said children, R, born …2008, and J, born …2002, to New Zealand, the Respondent Mother, Ms Faleauto, born  …1979, continue to be restrained and an injunction hereby issue restraining her from changing the residence of the said children, R, born …2008, and J, born …2002, from the premises where Ms Faleauto and the said children are currently residing, namely M Street, S suburb;

   (f)       Subject to sub-paragraph (f) 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 Faleauto, born …1979, and the said children, R, …2008, and J, …2002, on the All Ports Watch Alert System at all international departure points in Australia;

   (g)       The said children, R, born …2008, and J, born …2002, and the Respondent Mother, Ms Faleauto, 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 Court Services, Department of Communities, Child Safety and Disability Services, advising of the travel arrangements made for the said children to return to New Zealand from 12.00am on the date nominated for the said travel in the letter;

   (h)       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;

   (i)        To facilitate the return of the said children, R, born …2008, and J, born …2002, to New Zealand, the representative of the Department of Communities, Child Safety and Disability Services shall, upon receipt of a letter advising of the travel arrangements made for the said children to return to New Zealand, release to the person nominated in the letter, all current passports relating to the children for the purposes of the said children’s return to New Zealand and the Respondent Mother’s passport to her or her nominee upon request. This will be conducted from the Office of the Department of Communities, Child Safety and Disability Services in Cairns;

   (j)        The requesting father, Mr D, 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 Cairns Airport to Auckland Airport;

   (k)       Liberty to apply be granted to the Applicant to seek any further orders necessary to allow them to make such arrangements as are necessary to facilitate and ensure the return of the children in accordance with this order.

1. All other applications be dismissed.

1. There be liberty to apply.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Director-General, Department of Communities, Child Safety and Disability Services & Faleauto 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 BRISBANE

FILE NUMBER: BRC 9416 of 2012

Director-General, Department of Communities, Child Safety and Disability Services

Applicant

And

Ms Faleauto

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. By application filed on 18 November 2012, the Director-General, Department of Communities, Child Safety and Disability Services, in her capacity as the State Central Authority under the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”), applied for final orders that R, born in 2008, and J, born in 2002, be returned to the country of New Zealand.

2. The Regulations, which are made under ss 111B and 111D of the Family Law Act 1975 (Cth) (“the Act”) give effect to the Convention on the Civil Aspects of International Child Abduction, which is set out in Schedule 1 to the Regulations.

3. The person who made the request within the meaning of reg 2 of the Regulations is the children’s father, Mr D, who is currently residing in New Zealand, and the Respondent to the application is the children’s mother, Ms Faleauto.

4. The application in Form 2 is supported by affidavit evidence, including the affidavit of Ms E, a barrister of the High Court of New Zealand, with some thirty years’ experience as a lawyer and specialist in the area of family law in New Zealand. I am satisfied that Ms E is an expert in New Zealand law.

5. I am satisfied, on the contents of the application and the affidavit material filed in support of it, that the Applicant makes out each of the requirements under the Regulations for the making of a return order. Specifically, I am satisfied that the habitual residence of the children was New Zealand prior to their removal, that the requesting father had rights of custody and that the removal of the children was wrongful within the meaning of the Regulations. I am satisfied that, given the ages of the children and the timing of the application as compared with the date of removal from New Zealand, in all respects meets the requirements of the relevant regulations.

6. In the event, the Respondent did not mount any contest to the requisite elements for a return order or grounds of defence. In the result, the Respondent consents to the draft orders which have been handed up this morning and which I propose to make in those terms, save only for the modifications discussed with both the Applicant and the Respondent during the hearing and with which both have expressed agreement.

7. Whilst the Respondent appears by telephone this morning, I am satisfied that in the exchanges between the Court and the Respondent that the Respondent understands the consequences and effect of the relevant consent orders and I am satisfied that she does indeed consent to the making of such orders.

8. In those circumstances and for those reasons, I make orders in terms of the draft orders that have been handed up to the Court, with the addition to orders 1(a) and (b) of the words discussed in the course of the exchanges referred to. Those additions will appear in the final form of orders that are issued by the Court to each party.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 19 November 2012.

Associate:

Date:  21 November 2012