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

[2013] FamCA 260

FAMILY COURT OF AUSTRALIA

DIRECTOR-GENERAL, DEPARTMENT OF COMMUNITIES, CHILD SAFETY AND DISABILITY SERVICES & RAMEKA [2013] FamCA 260

FAMILY LAW – CHILD ABDUCTION – Hague Convention – Where the Respondent Father consents to the return of the child to New Zealand – 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 Rameka

FILE NUMBER: BRC 1934 of 2013

DATE DELIVERED: 23 April 2013

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 23 April 2013

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Crown Law

FOR THE RESPONDENT: In person

Orders

IT IS ORDERED BY CONSENT

1. That the child, C born … March 1998, be returned to the country of 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 22 June 2013;

   (b)That pending the said child, C born … March 1998, returning to New Zealand, the respondent father, Mr Rameka, continue to be restrained and an injunction is hereby issued, restraining him from removing or attempting to remove or causing or permitting the removal of the female child C born … March 1998 from the Commonwealth of Australia;

   (c)That pending the return of the said child, C born … March 1998 to New Zealand, the respondent father, Mr Rameka born … 1969, continue to be restrained and an injunction is hereby issued, restraining him from changing the residence of the said child, C born … March 1998, from the premises where Mr Rameka and the said child are currently residing namely, B Street, Suburb P;

   (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 respondent father, Mr Rameka born … 1969 and the said child C born … March 1998, on the All Ports Watch Alert System at all international departure points in Australia;

   (e)That the said child C born … March 1998, and the respondent father, Mr Rameka 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 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;

   (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)That to facilitate the return of the said child, C born … March 1998 to New Zealand, an officer of the Court Services Unit, Department of Communities, Child Safety & Disability Services be at liberty to release, all current passports relating to the child for the purposes of the said child's return to New Zealand; and release the respondent father’s passport to him or his nominee upon request.

   (h)That the respondent father, Mr Rameka, and the requesting applicant mother Ms Rameka pay half each of 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 Coolangatta Airport to New Zealand, and in the event the Respondent father fails or refuses to pay these expenses; the respondent father pay to the applicant the necessary expenses incurred by or on behalf of the applicant and Ms Rameka, 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 both parties to seek any further orders necessary to allow the parties to make such arrangements as are necessary to facilitate and ensure the return of the child in accordance with this order.

   (j)That paragraphs 1, 2, 3, 6 – 9 inclusive of the orders of the Honourable Justice Kent made 25 March 2013 be discharged forthwith.

2. That all other Applications be dismissed

IT IS NOTED that publication of this judgment by this Court under the pseudonym Director-General, Department of Communities, Child Safety and Disability Services & Rameka 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 1934 of 2013

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

Applicant

And

Mr Rameka

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. By application in Form 2 filed on 18 March 2013, the Director‑General, Department of Communities, Child Safety and Disability Services applied for final orders pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (“the Regulations”), including an order for the return of the female child, C, (“the child”) born in March 1998, to the country of New Zealand.

2. The requesting applicant for the purpose of the application is the child’s mother, Ms Rameka, who is about 39 years of age and lives in New Zealand.  The Respondent to this application is the child’s father, Mr Rameka.  Both parents are New Zealand citizens who married in 1997.  They have two children:  the child the subject of this application and another child who is not the subject of the application.  The parents divorced in 2002 and the subject child and her sister remained in the care of their mother, having contact with the father on an intermittent basis.  No parenting orders are in place either in New Zealand or in Australia.

3. The father moved to Australia in about 2007 and has lived here since.  Pursuant to an agreement with the mother, the subject child, along with her sister, her sister’s partner and their two children, travelled to Australia on 22 December 2012 for a holiday with the father.  The father paid for return tickets for both children, but on 5 January 2013, when they were due to return to New Zealand, the father telephoned the mother to advise that the subject child would remain in  Australia so that he could be more involved in her life.  The mother did not consent to this and demanded that the child be returned.

4. The central aspect of the application is that the Applicant contends that upon the failure of the father to return the child to New Zealand on 5 January 2013, the father breached the rights of custody of the mother, which she was exercising or would have been exercising but for the retention. 

5. On 25 March 2013, on the first return date of the application, I made a number of orders, including provision for the hearing of this application by way of a trial on 6 May next.  In the event, the father and the Applicant have been able to reach agreement so far as a return order being made and it, therefore, has not been necessary for the father to file the material, nor for the Applicant to file further material, as was provided for in the orders of 25 March 2013.  The father, therefore, does not contest, for the purpose of this application, the material filed in support of it.

6. I am satisfied, on the application and the material filed in support of it, that the Applicant makes out each of the requirements for the making of a return order pursuant to the Regulations.  I am satisfied, on the evidence of Kathryn Lellman filed in support of the application, that the mother at all material times had rights of custody under New Zealand law and that the retention of the child in Australia on 5 January 2013 was in breach of those rights.  I am satisfied that, at all material times, the child was habitually resident in New Zealand.  She is now 15 years of age and the application was filed within the time set by the Regulations.

7. I am satisfied that all the relevant requirements for the making of the return order are met and it being the case that the father now offers no grounds of objection or opposition to the application, and indeed consents to the orders sought, that the orders as provided in draft form, now initialled by me and placed with the file with those minor amendments discussed during the course of argument, be made and I make those Orders.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 23 April 2013.

Associate: 

Date:  23 April 2013