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

[2014] FamCA 676

FAMILY COURT OF AUSTRALIA

DIRECTOR-GENERAL, DEPARTMENT OF COMMUNITIES, CHILD SAFETY AND DISABILITY SERVICES & LAFOY (NO 2) [2014] FamCA 676

FAMILY LAW – CHILD ABDUCTION – Hague Convention – Where the Respondent mother agrees to an order for the return of the subject child to Mauritius  – 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 Lafoy

FILE NUMBER: BRC 6743 of 2014

DATE DELIVERED: 18 August 2014

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 18 August 2014

REPRESENTATION

SOLICITOR FOR THE APPLICANT:	Crown Law
SOLICITOR FOR THE RESPONDENT:	Ms McKenzie appearing as town agent for Schultz Toomey O’Brien Lawyers

Orders

It is ordered by consent that:

1. The child, B born … 2012, be returned to the country of Mauritius and for the purposes of giving effect to this Order:

   a.the said child leave the Commonwealth of Australia on or before 22 September 2014;

   b.pending the said child, B born … 2012, returning to Mauritius the Respondent Mother, Ms Lafoy born … 1991, continue to be restrained and an injunction is hereby issued, restraining her from removing or attempting to remove or causing or permitting the removal of the male child, B born … 2012, from the Commonwealth of Australia;

   c.pending the return of the said child, B born … 2012, to Mauritius, the Respondent Mother, Ms Lafoy born … 1991, continue to be restrained and an injunction is hereby issued, restraining her from changing the residence of the said child, B born … 2012, from the premises where she and the child are currently residing namely, C Street, Suburb D, in the State of Queensland;

   d.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 Respondent Mother, Ms Lafoy born … 1991 and of the said child, B born … 2012, on the All Ports Watch Alert System at all international departure points in Australia;

   e.the names of the said child, B born … 2012 and the Respondent Mother,  Ms Lafoy born … 1991, 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 Mauritius, from 12.00 am on the date nominated for the said travel in the letter;

   f.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.to facilitate the return of the said child, B born … 2012 to Mauritius, an officer of the Department of Communities, Child Safety and Disability Services be at liberty to release all current passports relating to the child for the purposes of the said child’s return to Mauritius, and release the Respondent Mother’s passport to her or her nominee upon request; and

   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 child in accordance with this Order.

2. There be liberty to apply.

3. All other Applications be dismissed and removed from the pending cases list.

Notation:

A.That to facilitate the return of the child to Mauritius, the Father proposes to travel to Australia to collect the child and return with the child to Mauritius and proposes to meet the consequent costs in that respect.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Director-General, Department of Communities, Child Safety and Disability Services & Lafoy (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 6743 of 2014

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

Applicant

And

Ms Lafoy

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. By Application in Form 2, filed on 29 July 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, B (“the child”) born in 2012, who is currently about 18 months old.

2. The requesting Applicant under the Convention is the child’s father, Mr E (“the father”), a Mauritian national.  The Respondent to the Application is Ms Lafoy (“the mother”), a Mauritian national, currently residing with the child at C Street, Suburb D in Queensland.

3. On the first return date of this Application, on 12 August 2014, I made what might be described as the usual interim orders in an Application of this type for the Reasons I delivered on that day.  Shortly stated, I was satisfied on the content of the Form 2 Application and the material filed in support of it that the father has rights of custody in respect of the child, pursuant to s 9 Chapter 1 of the Mauritian Civil Code (articles 371-372).  I was satisfied on the Form 2 Application and the material filed in support of it that there was, at least, a prima facie case for a return order to be made.

4. On that occasion the mother was not legally represented and expressed an intention to obtain legal advice with respect to the Application.  As at that stage, the mother had not yet been formally served with the Form 2 Application and the material filed in support of it, although she had had the opportunity to have some discussions with an officer of the Applicant.

5. The Orders made on 12 August 2014 were made, effectively, with the consent of the mother, in circumstances where the Court explained to her the effect of the relevant orders in circumstances where the matter was to come back to Court today.

6. This morning Ms McKenzie, as town agent for Schultz Toomey O’Brien, the solicitors for the mother appears. 

7. The mother does not wish to oppose the Application for final orders and, indeed, consents to orders being made for there to be a return order made.

8. Whilst the Applicant had sought an order that the mother return the child to Mauritius and pay all associated costs, it appears that agreement has been reached that the father will travel here to collect the child and effect the return.  It has also been agreed, as between the parties, that the return date should be on or before 22 September 2014.

9. In the circumstances, and in particular the fact that the mother does not take issue with the content of the Form 2 Application and the material filed in support of it, I am satisfied that a return order ought be made, pursuant to the Regulations.

10. I therefore make the following orders, effectively, as it seems to me, by consent, but I will give Ms McKenzie an opportunity to tell me if the mother takes issue with any of the orders I now propose to make.

11. For these reasons I make the orders set out at the commencement of these Reasons.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 18 August 2014.

Associate:

Date: 18 August 2014