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

[2013] FamCA 603

FAMILY COURT OF AUSTRALIA

DIRECTOR-GENERAL, DEPARTMENT OF COMMUNITIES, CHILD SAFETY AND DISABILITY SERVICES & GALLEGO	[2013] FamCA 603
FAMILY LAW – CHILD ABDUCTION - Hague Convention - Where the Respondent Mother consents to the return of the child to the United States of America - Where the Court is satisfied that the elements required for the making of a return order are established

Family Law (Child Abduction Convention) Regulations 1986 (Cth)

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

RESPONDENT: Ms Gallego

FILE NUMBER: BRC 4384 of 2013

DATE DELIVERED: 16 August 2013

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 16 August 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Selfridge

SOLICITOR FOR THE APPLICANT: Crown Law

COUNSEL FOR THE RESPONDENT: Mr Hammond

SOLICITOR FOR THE RESPONDENT: Aboriginal & Torres Straight Islander Legal Service (QLD) Ltd

Orders

IT IS ORDERED BY CONSENT

1. That the child, B born … 2011, be returned to the country of the United States of America, and for the purposes of giving effect to this order:

   (a)That the said child leave the Commonwealth of Australia on or before 2 September 2013;

   (b)That the said child arrive in the United States of America on or before 3 September 2013;

   (c)That pending the said child, returning to the United States of America, the respondent mother, Ms Gallego born … 1969 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;

   (d)That pending the return of the said child to the United States of America, the respondent mother continued to be restrained and an injunction is hereby issued, restraining her from changing the residence of the said child from the premises where the child and her are currently residing namely, C Street, D Town in the State of Queensland, Australia;

   (e)That 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 and the said child on the All Ports Watch Alert System at all international departure points in Australia;

   (f)That the said child and the respondent mother 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, Child Safety and Disability Services advising of the travel arrangements made for the said child to return to the United States of America from 12.00 am on the date nominated for the said travel in the letter;

   (g)That 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;

   (h)That to facilitate the return of the said child to the United States of America, Ms E, Department of Communities, Child Safety and Disability Services or her nominee be at liberty to release, all current passports relating to the child for the purpose of the said child's return to the United States of America; and release the respondent mother's passport to her or her nominee upon request;

   (i)That liberty to apply be granted to the applicant to seek any further orders necessary to allow her or officers of the Department of Communities, Child Safety and Disability Services to make such arrangements as are necessary to facilitate and ensure the return of the child in accordance with this order and pursuant to the Central Authority’s obligation under regulation 20 of the Family Law (Child Abduction Convention) Regulations 1986.

2. That all other applications be dismissed.

3. That there be liberty to apply.

NOTATION: As per undertaking signed by the Father and the respondent Mother on 16 August 2013.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Department of Communities, Child Safety and Disability Services & Gallego 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 4384 of 2013

DIRECTOR GENERAL, DEPARTMENT OF COMMUNITIES, CHILD SAFETY AND DISABILITY SERVICES

Applicant

And

Ms Gallego GALLEGO

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. By an application in Form 2 filed on 5 June 2013, 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), applied for orders including a final order for return of the child, B, born in 2011, to the country of the United States of America.  The requesting applicant is Mr Gallego, the child’s father, and the Respondent to the application is the child’s mother, Ms …, also known as Gallego.

2. Today was to be the trial of the application for final orders.  Initially, by her response and affidavit material in reply, the Respondent mother raised the issue of consent and, secondly, the grave risk exception. In the event the issue of consent was not pursued.  In the event, it was not necessary for the Court to determine whether or not the grave risk exception was made out, given that the parties have been able to negotiate upon orders to be made by consent based on an undertaking provided to the Court by the father.

3. I am satisfied, on the contents of the Form 2 application now not contested, that the Applicant makes out each of the requirements for the making of a return order and, as noted, it has been unnecessary for me to determine whether the grave risk exception is to be made out, given that the Respondent mother consents to the making of an order for the return of the child and does not pursue that or any ground of defence. 

4. I am satisfied that the orders, as agreed by the parties, in light of the undertaking given by the father, ought be made, given that the undertaking by the father would meet, in my view, the conditions that might have been imposed by the Court even if the Respondent mother had succeeded in making out the grave risk exception.  I stress that the Court has not been required to adjudicate on that in the end result. 

5. I therefore am satisfied in making the orders that have been consented to by the parties and signed by them and now initialled by me and placed with the file, upon the undertaking provided to the Court by the father, Mr Gallego, which will be admitted and marked Exhibit 1 in the proceedings.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 16 August 2013.

Associate:                 

Date:  19 August 2013