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

[2012] FamCA 972

FAMILY COURT OF AUSTRALIA

DIRECTOR-GENERAL, DEPARTMENT OF COMMUNITIES, CHILD SAFETY AND DISABILITY SERVICES & LARSON (NO 2) [2012] FamCA 972

FAMILY LAW – CHILD ABDUCTION - Hague Convention - Where the Respondent Mother consents to the return of the 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 Larson

FILE NUMBER: BRC 9341 of 2012

DATE DELIVERED: 23 November 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 23 November 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Crown Law

Orders

1. That the child B born … August 2003, be returned to New Zealand and for the purposes of giving effect to this order:

(a)       That the said child leave the Commonwealth of Australia on or before 7 December 2012;

(b)       That pending the said child, B born … August 2003, returning to New Zealand, the respondent mother, Ms Larson, 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;

(c)       That pending the return of the said child, B born … August 2003 to New Zealand, the respondent mother, Ms Larson born … April 1986, continue to be restrained and an injunction is hereby issued, restraining her from changing the residence of the said child, B born … August 2003, from the premises where Ms Larson and the said child are currently residing namely, of F Street, G Town in the State of Queensland, save and unless the respondent mother provides to an officer of the Court Services Unit, Department of Communities, Child Safety and Disability Services notice of any proposed change not less than 24 hours beforehand;

(d)       That paragraphs 2, 3, 5 and 6 of the orders of the Honourable Justice Kent made 26 October 2012 be discharged forthwith.

(e)       That 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 Larkin born … April 1986 and the said child B born …August 2003, on the All Ports Watch Alert System at all international departure points in Australia;

(f)       That the said child B born …August 2003, and the respondent mother, Ms Larkin 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 Court Services, Department of Communities, Child Safety & Disability 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)       That the Marshall 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)       That the respondent mother, Ms Larson, pay all the necessary expenses associated with returning the child to New Zealand, including the cost of airfares and departure taxes (if any) for the child to travel from the Brisbane Airport or such other airport as is necessary to New Zealand, and in the event the Respondent mother fails or refuses to pay these expenses; the respondent mother pay to the applicant the necessary expenses incurred by or on behalf of the applicant and Mr E, in returning the child to New Zealand, within two business days of the applicant making a written demand for reimbursement of the said expenses.

(i)        That liberty to apply be granted to the applicant to seek any further orders necessary to allow her to make such arrangements as are necessary to facilitate and ensure the return of the child in accordance with this order.

1. That all other Applications be dismissed.

2. That 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 & Larson 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 9341 of 2012

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

Applicant

And

Ms Larson

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. By Form 2 application filed on 16 October 2012, the Director-General, Department of Communities, Child Safety and Disability Services, in her capacity as the State Central Authority, made an application pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (Cth) for the return of the child, B, born in August 2003, (“the child”) to the country of New Zealand.

2. The Respondent Mother to that application, Ms Larson, born in 1986, appeared in response to the Application by her then solicitor on 2 November 2012, when a number of interim orders were made. Those orders included directions for the filing and service of material by the Respondent Mother in the event that she wished to challenge the application or the making of the return order.

3. In the event, all that was filed by the Respondent Mother was a Notice of Address for Service on 2 November 2012, that being the same day as those orders, and I am now informed by both the Applicant and the Respondent Mother that she consents to returning to New Zealand and that she has consented to the orders, a copy of which bears her signature. The Respondent Mother acknowledged on the record this morning that she had signed and returned those orders, and I admit and mark as Exhibit 1 in the proceedings a copy of the form of orders signed by Ms Larson.

4. I am satisfied, in the circumstances and given that there is no contest to the content of the application, that the child was habitually resident in the country of New Zealand and that the requesting father had rights of custody with respect to the child at the material time. I am satisfied, on the uncontested material, that the child was wrongfully removed from the country of New Zealand. I note that the application is supported by expert evidence in relation to the laws of New Zealand in support of the contentions just noted.

5. In all those circumstances, I am satisfied as to the making of the orders in terms as sought by the parties and I now make orders in terms of the draft orders now initialled by me and placed with the file.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 23 November 2012.

Associate:

Date: 23 November 2012