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

[2014] FamCA 229

FAMILY COURT OF AUSTRALIA

DIRECTOR-GENERAL, DEPARTMENT OF COMMUNITIES, CHILD SAFETY AND DISABILITY SERVICES & PAYNE (NO. 2) [2014] FamCA 229

FAMILY LAW – CHILD ABDUCTION – Hague Convention – Publication Order – Where both parties request the assistance of the Court to approach the Bar Association of Queensland in an attempt to obtain legal assistance for the Respondent Paternal Grandmother for the trial of these proceedings

Family Law Act 1975 (Cth) Family Law (Child Abduction Convention) Regulations 1986 (Cth)
APPLICANT:	Director-General, Department of Communities, Child Safety and Disability Services

RESPONDENT:	Ms Payne
FILE NUMBER:	BRC	1747	of		2014

DATE DELIVERED: 4 April 2014

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 4 April 2014

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Crown Law

COUNSEL FOR THE RESPONDENT: In Person

Orders

It is ordered that:

1. The Respondent Paternal Grandmother be at liberty to re-list the matter before the Honourable Justice Kent on the giving of forty-eight (48) hours notice in writing to the other party.

1. Pursuant to s 121(g) of the Family Law Act 1975 (Cth), publication of a

   transcript of today’s proceedings and the reasons for judgment of the Honourable

   Justice Kent delivered today, to the President of the Bar Association of

   Queensland, and such other members of the Bar Association as may be

   necessary for the purpose noted below, be approved.

Notation:

1. Both parties requested the assistance of this Honourable Court to approach the President of the Bar Association of Queensland in an attempt to obtain legal assistance for the Respondent Paternal Grandmother for the trial of these proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Director-General, Department of Communities, Child Safety and Disability Services & Payne (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 1747 of 2014

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

Applicant

And

Ms Payne

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. By Application in Form 2 filed on 25 February 2014, the Director‑General, Department of Communities, Child Safety and Disability Services, in his capacity as the State Central Authority (“the Central Authority”), makes application pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”) for a final order for return of the child, L, born in April 2009, (“the child”), to the country of New Zealand.

2. The Respondent to the Application is the child’s Paternal Grandmother, Ms Payne (“the Respondent”).  The requesting applicant is the child’s Mother,    Ms D (“the mother”).

3. Briefly stated, the background to this Application is that, in or about May 2012, there was agreement between the mother and the Respondent to this Application that they, together with the child, would relocate to Australia to live. 

4. In the result, the child and the Respondent did come to Australia and have remained in Australia ever since. It seems that the mother mistakenly believed that she had been convicted of a fraud charge of sufficient severity that she would not be allowed to enter Australia.  Thus, it was that in or about July 2012, the mother requested of the Respondent that the child be returned to New Zealand.

5. I interpolate here that there is some evidence that the child’s father has signed some agreement pursuant to customary laws of Maori people in relation to the child being and remaining in the care of the Respondent.  I mention that simply because the father is not a party to these proceedings. 

6. The mother has provided some evidence to the effect that she was unaware, despite legal advice, of any capacity to invoke what may conveniently be described as the Hague Convention, to seek a return order, until the steps that were taken leading to the filing of this Application on 25 February 2014.

7. It is clear now, given the material that has thus far been filed by the Respondent, that there are a number of significant issues concerning the Application and some issues of complexity.  Mr E, for the Central Authority, properly and fairly raises the prospect of a self‑represented Respondent in the position of this Respondent having significant difficulty dealing with the legal issues as they advise.  For example, it is clear that habitual residence of the child will be in issue, that is, whether the child was habitually resident in New Zealand as at the time of alleged wrongful retention in July 2012, given the circumstances I have briefly mentioned.

8. There is also the issue, it would seem, of whether or not the mother consented to the child being in Australia or acquiesced in that position, given the delay between July 2012, when she says she sought his return, and the period that then elapsed until this Application was filed.

9. It is clear that the Application was filed outside the 12 month period identified in the Regulations, giving rise to the question of whether the child is living in a settled environment as at the time of the hearing of the Application.

10. There are also questions raised on the Respondent’s material about whether the child would be at grave risk, within the meaning of the Regulations, if an order for return was made.

11. Mr E raised the prospect of the Court requesting the assistance of the Bar Association to obtain representation of the Respondent.

12. Part of the discussion this morning concerned steps taken by the Central Authority to obtain information from relevant New Zealand authorities, given matters raised in paragraph 9 of the Respondent’s affidavit filed and attached to her Form 2A Response on 26 March 2014.

13. For these reasons, I propose to order that a transcript of today’s hearing be obtained, and I propose to publish that transcript, together with these reasons, in a request to the President of the Bar Association of Queensland, seeking that consideration be given to identifying counsel who might be able to assist the Respondent for the purpose of the final hearing, currently set to occur on 2 May 2014.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 4 April 2014.

Associate: 

Date:  4 April 2014