Director-General, Department of Communities, Child Safety and Disability Services and Halba (No 2)

[2016] FamCA 37

FAMILY COURT OF AUSTRALIA

DIRECTOR-GENERAL, DEPARTMENT OF COMMUNITIES, CHILD SAFETY AND DISABILITY SERVICES & HALBA (NO 2) [2016] FamCA 37

FAMILY LAW – CHILD ABDUCTION – Hague Convention – Where application was made for the return of children to New Zealand – where the Respondent Mother did not oppose application for children to be returned to New Zealand – where Orders were made returning the two children to New Zealand.

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: 29 January 2016

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 29 January 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Meisenhelter

SOLICITOR FOR THE APPLICANT: Crown Law

COUNSEL FOR THE RESPONDENT: In Person

Orders

IT IS ORDERED BY CONSENT THAT:

1. The children, F born … 2005, and S born … 2007, 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    2 February 2016;

   (b)       The said children arrive in New Zealand on or before 3 February 2016;

   (c)       Pending the said children, returning to New Zealand, the Respondent    Mother, Ms Halba (nee …) born … 1983, be restrained and   an injunction is hereby issued, restraining her from removing or   attempting to remove the said children from the Commonwealth of      Australia;

   (d)Pending the said children returning to New Zealand, the Respondent Mother, Ms Halba (nee …) 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;

   (e)Subject to sub-paragraph (f) below, the Commissioner of the Australian Federal Police and all Federal Agents of the Australian Federal Police maintain the names of the Respondent Mother, Ms Halba (nee …) born … 1983, and the children, F born … 2005, and S born … 2007, on the Family Law Watch List at all international departure points in Australia;

   (f)The children, F born … 2005, and S born … 2007, and the Respondent Mother, Ms Halba (nee …) born … 1983, be removed from the Family Law Watch List 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 children to return to New Zealand;

   (g)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)Liberty to apply be granted to the Applicant to seek any further orders necessary to allow him 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 said children 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. All other applications be dismissed.

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 Application in Form 2 filed on 4 December 2015, the Director-General, Department of Communities, Child Safety and Disability Services (“the Department”), in the capacity of the State Central Authority under the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”), applied for final orders for the return of two children to New Zealand.

2. Interim orders had been made by me previously in relation to the application.  Those orders were made at a time when the mother did not appear on those return dates.  The mother of the children appears today on this adjourned date of the proceedings and has expressed her consent to return orders being made in terms of minutes of orders handed up to the Court.

3. I am satisfied that the Form 2 Application filed by the applicant and the material filed in support establishes the requirements for the making of a return order under the relevant Regulations.  In circumstances where the mother does not oppose the application and, indeed, consents to the orders to which I have referred, it is clear that return orders ought be made.

4. I therefore make orders in terms of the order handed up today by the applicant and to which the mother has expressed her agreement.  I record that the mother has arranged for herself and the children to fly to New Zealand on Sunday, 1 February 2016, and the order allows for a day's grace in that respect in case something not presently foreseen occurs on Sunday.  The order mandates, though, that the mother and children return to New Zealand so as to arrive on or before 3 February 2016.

5. I therefore make orders in terms of the minutes of orders now initialled by me and placed with the file and consented to by the mother.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 29 January 2016.

Associate: 

Date:  29 January 2016