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

[2014] FamCA 62

FAMILY COURT OF AUSTRALIA

DIRECTOR-GENERAL, DEPARTMENT OF COMMUNITIES, CHILD SAFETY AND DISABILITY SERVICES & KAMARA [2014] FamCA 62

FAMILY LAW – CHILD ABDUCTION – Hague Convention – Where the Respondent Father consents to the return of the children to Canada – 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: Mr Kamara

FILE NUMBER: BRC 10181 of 2013

DATE DELIVERED: 7 February 2014

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 7 February 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Green

SOLICITOR FOR THE APPLICANT: Crown Law

FOR THE RESPONDENT: In person
Mr Armfield, solicitor of Porta Lawyers given leave to withdraw before commencement of proceedings

Orders

IT IS ORDERED BY CONSENT

1. That the children, N born … September 2010 and F born … June 2012 (“the children”) be returned to Canada; and for the purposes of giving effect to this order:

   (a)That the said children leave the Commonwealth of Australia on or before  15 February 2014;

   (b)       That the said children arrive in Canada on or before 16 February 2014;

   (c)That pending the said children returning to Canada, the Respondent father continue to be restrained and an injunction is hereby issued, restraining him from removing or attempting to remove the said children from the Commonwealth of Australia;

   (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 mother and the said children on the All Ports Watch Alert System at all international departure points in Australia;

   (e)The names of the said children be removed from the Family Law and/or All Ports Watchlist, and if the name of the mother, Ms Ricardo born … 1982, is on the Family Law and/or All Ports Watchlist, it too be removed 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 Canada from 12.00 am on the date nominated for the said travel in the letter;

   (f)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;

   (g)The Registrar of the Family Court of Australia, upon receipt of a letter from an officer of the Department of Communities, Child Safety and Disability Services arrange for the release to that officer, or nominee, all current passports relating to N born … September 2010 F born … June 2012 and Ms Ricardo born … 1982; and release the Respondent father's passport to him or his nominee upon request;

   (h)That 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 children in accordance with this order and pursuant to the State 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.

IT IS FURTHER ORDERED THAT

1. The subpoena issued to the Commissioner of the Queensland Police Service be discharged.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Director-General, Department of Communities, Child Safety and Disability Services & Kamara 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 10181 of 2013

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

Applicant

And

Mr Kamara

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. By Application in Form 2 filed on 22 November 2013, the Director-General, Department of Communities, Child Safety and Disability Services sought orders in his capacity as the State Central Authority under the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”) in relation to the children, N born in September 2010, and F born in June 2012.  Those orders were to effect the return of the children to Canada on the basis contended in the application that Canada is the country of habitual residence of the children. 

2. The Form 2 establishes a prima facie case as to all of the requisite elements under regulation 16 of the Regulations. 

3. Whilst during the currency of the proceeding, it seemed that the Respondent Father might raise issues about the country of habitual residence of the children, in the event, what has occurred is that consent orders have been reached as between the Director-General and the Respondent Father which provide for the return of the children to Canada on or before 16 February 2014. 

4. The Respondent Father appears before me today and confirms that he has read and understood the consent orders giving effect to that conclusion and that they have been signed voluntarily.  He does not oppose the making of those orders, and it is clear that he does not oppose, any longer at least, the prima facie case set out and established by the Form 2 and the material in support of it. 

5. In those circumstances, I am satisfied that the return order ought be made and otherwise that the orders that have been consented to by both the Applicant and the Respondent be made. I make those orders as now initialled by me and placed with the file. 

6. For completeness, I will also discharge of the subpoena that was earlier issued by the Applicant to the Queensland Police Service.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 7 February 2014.

Associate:   

Date:  10 February 2014