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

[2014] FamCA 1096

FAMILY COURT OF AUSTRALIA

DIRECTOR-GENERAL, DEPARTMENT OF COMMUNITIES, CHILD SAFETY AND DISABILITY SERVICES & KARP (NO. 2) [2014] FamCA 1096

FAMILY LAW – CHILD ABDUCTION – Hague Convention – Final orders – Where the Respondent mother consents to an order for the return of the subject child to New Zealand – Where the Court is satisfied that the making of a return order is justified

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

APPLICANT: Director-General, Department Of Communities, Child Safety And Disability Services

RESPONDENT:	Ms Karp
FILE NUMBER:	BRC	8138	of		2014

DATE DELIVERED: 5 December 2014

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 5 December 2014

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Crown Law

FOR THE RESPONDENT: In person

Orders

It is ordered by consent that:

1. The child, V born … 2005, be returned to New Zealand; and for the purposes of giving effect to this Order:

   a.The said child leave the Commonwealth of Australia on or before 1 January 2015;

   b.The said child arrives in New Zealand on or before 2 January 2015;

   c.Pending the said child returning to New Zealand, the Respondent Mother continue to be restrained and an injunction is hereby issued, restraining her from removing or attempting to remove the said child from … C Street, Suburb D, 4…;

   d.Pending the said child returning to New Zealand, the Respondent Mother 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;

   e.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 Karp born … 1986, and the child, V (male) born … 2005, on the Family Law Watch List at all international departure points in Australia;

   f.The names of the child, V born … 2005, and the Respondent Mother Ms Karp born … 1986, 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 child to return to New Zealand from 12.00 am on the date nominated for the said travel in the letter;

   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.To facilitate the return of the said child to New Zealand, Ms A, Department of Communities, Child Safety and Disability Services or her nominee be at liberty to release all current passports relating to the child, V born … 2005, for the purposes of his return to New Zealand; and release the Respondent Mother's passport to her or her nominee upon request;

   i.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 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.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Director-General, Department of Communities, Child Safety and Disability Services & Karp (No. 2) 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 8138 of 2014

Director-General, Department Of Communities, Child Safety And Disability Services

Applicant

And

Ms Karp

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. By Application in Form 2, filed on 9 September 2014, the Director-General, Department of Communities, Child Safety and Disability Services, in his capacity as the State Central Authority under the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”) applies for final orders with respect to the child, V (“the child”) born in 2005, who is currently nine years of age.  The Central Authority seeks final orders that the child be returned to the country of New Zealand. 

2. The requesting applicant under the Convention is the child’s father, Mr B (“the father”) aged 34 born in 1980, a New Zealand citizen.  The respondent to the application is Ms Karp (“the mother”) aged 28 born in 1986, who appears today with the assistance of her own mother.  The mother is a New Zealand National, currently residing with the child at C Street, Suburb D. 

3. The father has rights of custody in respect of the child pursuant to interim parenting orders made by consent at the New Zealand Family Court in November 2013 which provided for the father to have:  “the role of providing day-to-day care for” the child.  That order expired in November 2014.  I assume it has lapsed in circumstances where the parents are yet to take steps to make any final order.

4. On 22 September 2014 I made a number of interim orders, including what may conveniently be described as the usual orders at an interim stage of an application of this type, having regard to the prima facie case established on the contents of the Form 2 Application and the material in support of it.

5. Further directions were made in relation to the filing of material and also, ultimately, orders were made for the setting down of the matter for trial today. 

6. Whilst the mother by her Form 2A Response and Cross Application filed on 13 October 2014 opposed the final orders sought by the applicant, the position has been reached during the course of the hearing that the mother no longer opposes the making of orders that would see the child return to New Zealand.  Agreement has been reached on the date of return, being on or before 1 January 2015.

7. I am satisfied that the applicant has discharged, on the contents of the Form 2 Response and Cross Application and the material filed in support of it, all the necessary elements under the Regulations for the making of a return order.  In circumstances where the mother did not maintain her opposition to the application it can be accepted that the grounds for the making of a return order are made out and, indeed, as noted, the mother ultimately was able, with the assistance of her own mother, to reach agreement with the applicant on the form of orders to be made. 

8. I am therefore satisfied that it is appropriate and in accordance with the Convention and Regulations to make the orders that are now proposed by both parties to be made by the Court. 

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 5 December 2014.

Associate: 

Date:  5 December 2014