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

[2015] FamCA 1181

FAMILY COURT OF AUSTRALIA

DIRECTOR-GENERAL, DEPARTMENT OF COMMUNITIES, CHILD SAFETY AND DISABILITY SERVICES & HALBA [2015] FamCA 1181

FAMILY LAW – CHILD ABDUCTION – HAGUE CONVENTION – INTERIM – where the respondent did not appear at the hearing – where the Respondent has previously indicated her intention to consent to return order – where interim orders made.

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

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

RESPONDENT: Ms Halba

FILE NUMBER: BRC 11674 of 2015

DATE DELIVERED: 18 December 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 18 December 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Crown Law

THE RESPONDENT: No appearance

Orders

it is ordered until further order that:

1. The Respondent Mother, Ms Halba born … 1983, be restrained and an injunction issue restraining her and any other person from removing, or attempting to remove the children, F born … 2005, and S born … 2007, from the Commonwealth of Australia.

2. The Respondent Mother, Ms Halba born … 1983, be restrained and an injunction issue restraining her from changing the said children’s usual day to day residence from the premises where she and the said children are currently residing namely, X Street, Suburb Z, in the State of Queensland.

3. 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.

4. The Commissioner of the Australian Federal Police place the names of the Respondent Mother, Ms Halba born … 1983, and the said children, F born … 2005 (a male), and S born … 2007 (a female), on the Family Law Watch List at all international departure points in Australia and maintain those names on the Family Law Watch List for a period of two (2) years.

5. Upon expiration of the period referred to in Order 4 and subject to any further order of a court of competent jurisdiction the Australian Federal Police will cause the removal of the names referred to in Order 4 from the Family Law Watch List.

6. The Applicant be at liberty to forthwith notify the Australian Federal Police of these orders.

7. The proceedings be listed for further mention before the Honourable Justice Kent at 10.00 am on 18 January 2016 at the Family Court, Brisbane Registry.

8. 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 & Halba 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 11674 of 2015

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

Applicant

And

Ms Halba

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. By an Application in Form 2 filed on 4 December 2014, the Department of Communities, Child Safety and Disability Services (“the Department”) in the capacity of the State Central Authority[1] sought both interim and final orders with respect to two children, F born in 2005 and S born in 2007.

   [1] Under the Family Law (Child Abduction Convention) Regulations 1986 (Cth).

2. The first return date of the Form 2 Application was 11 December 2015.  On that occasion the application was adjourned to today’s date.  

3. In the interim it was understood that the respondent mother would be consenting to return orders being made and indeed, had expressed an intention to the applicant to return with the children to New Zealand by the end of January 2016.

4. In the event, on today’s hearing, the respondent mother has not appeared and attempts to telephone her have been unsuccessful.  On that basis the applicant seeks interim orders in terms of paragraphs 4 to 10 of the Form 2 Application and otherwise for the application to be adjourned.  I have nominated a further return date as 10.00 am on the 18th of January 2016.

5. It may be that the respondent mother follows through with her expressed intention to consent to return orders and that the parties are able to submit to the Court consent orders in terms signed by both that enables the further hearing date to be vacated.

6. In terms of the interim orders that are sought, all that need be said is that the Form 2 Application establishes a prima facie case for the making of return orders.  It is clear on the content of the Form 2 Application that both parents and their children were habitually resident in New Zealand, and that the respondent mother departed with the children to Australia on 12 June this year in circumstances where, on the evidence provided by the applicant, the father of the children had not consented to the children being removed to Australia.

7. I am satisfied on the content of the Form 2 Application that if ultimately established, all the necessary elements to the making of a return order would be established and the interim orders now sought, and which I intend to make, simply preserve the position pending the further determination of the application, possibly by a consent order as referred to.

8. For these reasons I make interim orders in terms of the paragraphs of the Form 2 Application referred to and otherwise adjourn the further hearing of this application to 10.00 am on 18 January 2016.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 18 December 2015.

Associate:

Date:  18 December 2015