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

[2014] FamCA 965

FAMILY COURT OF AUSTRALIA

DIRECTOR-GENERAL, DEPARTMENT OF COMMUNITIES, CHILD SAFETY AND DISABILITY SERVICES & TALLULAH [2014] FamCA 965

FAMILY LAW – CHILD ABDUCTION – Hague Convention – Interim orders – Children’s names to be placed on the Family Law Watch list – Matter adjourned

Hague (Child Abduction Convention) Regulations 1986 (Cth)

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

RESPONDENT: Ms Tallulah

FILE NUMBER: BRC 9790 of 2014

DATE DELIVERED: 7 November 2014

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 7 November 2014

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Crown Law

FOR THE RESPONDENT: No appearance

Orders

It is ordered until further order that:

1. The Respondent Mother Ms Tallulah born on … 1974, be restrained and an injunction issue, restraining her and any other person from removing, or attempting to remove the children, L born on … 2007, J born on … 2009 and B born on … 2012, from the Commonwealth of Australia.

2. The Respondent Mother Ms Tallulah born … 1974, be restrained and an injunction issue, restraining her from changing the said children’s usual day to day residence from the premises where she and the said children are currently residing.

3. 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.

4. The Commissioner of the Australian Federal Police place the names of the Respondent Mother Ms Tallulah born … 1974 and the children, L born on … 2007, J born on … 2009 and B born on … 2012, on the Family Law Watch List at all international departure points in Australia for a period of two (2) years.

5. Upon expiration of the period referred to in Order 4 or subject to any further order   of a court of competent jurisdiction the Australian Federal Police will cause the removal of the mother’s and the children’s names from the Family Law Watch List.

6. The Respondent Mother Ms Tallulah born on … 1974, surrender forthwith to an officer of the Department of Communities, Child Safety and Disability Services, all current passports relating to herself and the children, L born … 2007, J born on … 2009 and B born on … 2012.

7. The Applicant be at liberty to forthwith notify the Australian Federal Police of these Orders.

It is ordered that:

1. The Respondent Mother file and serve a Form 2A Answer and Cross Application on or before 4.00 pm on 28 November 2014.

2. The Respondent Mother file and serve affidavits of evidence in chief to be relied      upon at the hearing of the Application on or before 4.00 pm on 28 November 2014.

3. The Applicant file and serve any affidavits in reply on which the Applicant proposes to rely upon on or before 4.00 pm on 5 December 2014.

4. The proceedings be listed for hearing before the Honourable Justice Kent at 10.00 am on 12 December 2014 at the Family Court of Australia, Brisbane Registry.

5. There be liberty to apply.

Notation:

A.If after the expiration of the period set out in Order 4 above any parent seeks that the children’s names remain on the Watch List for a period beyond the period specified that party must file and serve an application and an affidavit setting out the evidence which supports that application in the Family Court of Australia or the Federal Circuit Court of Australia. 

IT IS NOTED that publication of this judgment by this Court under the pseudonym Director-General, Department of Communities, Child Safety and Disability Services & Tallulah 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 9790 of 2014

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

Applicant

And

Ms Tallulah

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. By Application in Form 2 filed on 30 October 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 children, L born in 2007 who is currently seven years of age; J born in 2009, who is currently five years of age; and B born in 2012, who is currently two years of age.

2. The requesting applicant under the Convention is the children’s father, Mr Tallulah, aged 60, born in 1954, a New Zealand national.  The respondent to the Application is Ms Tallulah (“the mother”), aged 40, born in 1974, a Samoan national with New Zealand citizenship, who is believed to be residing with the children in Town A, subject to some further comments I will make shortly.  On the Form 2 Application and material filed in support, it would seem that the father has rights of custody in respect of the children, pursuant to the Care of Children Act 2004 (NZ). 

3. In summary, the final orders sought in this Application are that the mother return the children to New Zealand from Australia and pay all associated costs.  Briefly stated, the mother and father met in Samoa in 2001 and commenced a relationship shortly thereafter.  At the time the parents met the father was working in Samoa for a transportation company, and the mother, who was born in Samoa, had four children from a previous relationship.  There are six children of these parents relationship however, only three of those children are the subject of these proceedings.

4. On the father’s evidence, over the course of the relationship the parties spent periods living together or apart in between Samoa, New Zealand, and Australia, depending on where the father’s employment took him.  The parties married in New Zealand in 2006.  The mother received her New Zealand citizenship in November 2012 and was issued a New Zealand passport in October 2013.  It is not entirely clear when the parties separated, but the father deposes to the mother forming a new relationship in August 2013, and of his having discussions with the mother regarding whether their relationship was to continue in June 2014. 

5. In December 2013 the children L and J travelled from New Zealand to Brisbane to stay with family for the school holidays.  The father maintains that this was upon the understanding that L and J were to return to New Zealand prior to the beginning of school in February 2014.  L was enrolled in a school in New Zealand to commence at the beginning of 2014.  The children have not been returned.  The father maintains that he considered travelling to Australia to collect J and L, but did not have the requisite funds to so do. 

6. On 31 March 2014 the mother travelled to Australia with the child B to see L and J.  The father deposes that the mother told him that the purpose of the trip was just for a holiday for a period of one month, at the conclusion of which the mother would return to New Zealand with the subject children.  The father maintains that he consented to the mother travelling to Australia with B solely on that basis, being for a one month holiday and to collect the children. 

7. On 1 June 2014, the father travelled to Brisbane to see L, J and B and the mother.  The father deposes that at this time he “hoped to gauge that she [the mother] would be intending to return to New Zealand with the children.”

8. The father returned to New Zealand on 8 June 2014.  Upon his return the father began making inquiries as to the steps he could take regarding the care of his children, and sought legal advice.  The father contacted the New Zealand Central Authority on 11 June 2014. 

9. The applicant has sought to serve the respondent mother, and indeed exhibit 1 purports to be an affidavit of service upon her, in which it is deposed by the process server that a person upon whom the documents were purportedly served identified herself as the respondent mother, and acknowledged that she would sign the acknowledgment of service attached to the affidavit, being an affidavit of Ms C.

10. The applicant, however, advises that there is conflicting information, some of which is hearsay or third hand in relation to whether or not the mother could have been served, as at yesterday’s date, at Suburb D.  There is information to suggest that the mother may, in fact, currently be in Samoa, or at least was in Samoa as at the time when this service was purportedly effected.  The applicant seeks to make further inquiries to clarify the position, including with the Central Authority in New Zealand. 

11. Interim orders in what may be termed the “usual form” are sought by the applicant in the meantime.  Those interim orders include an order for liberty to apply, so that in the event that the mother seeks to agitate some complaint about orders being made in her absence, there is scope for her to bring an application to the Court on short notice, seeking to be heard on the interim orders now proposed to be made.

12. I am satisfied, on the contents of the Form 2 Application and material filed in support of it, that there is at least a prima facie case for final orders. On that basis, I am satisfied that it is appropriate that interim orders as contended for by the applicant ought be made pending trial. The trial has been set down for 12 December 2014 before me, on the basis that that is the last date available for it this year, or otherwise there could not be a listing of the trial until February of next year. In circumstances where the Regulations are directed to these matters being heard and determined within 42 days, I therefore set the trial down on that date, and propose to make other directions in relation to the filing of material for the purpose of that trial.

13. As I say, liberty to apply has been granted to both parties, in the event that the mother wishes to be heard.  I simply note in passing that the children the subject of this Application would not, on the face of it, be old enough to participate in a regulation 26 report. 

14. I therefore make orders in terms of the draft provided by the applicant, and now initialled by me and placed with the file, recording that in paragraphs 8 and 9 the date 28 November 2014 will appear;  in paragraph 10 the date 5 December 2014;  and in paragraph 11, 10.00 am on 12 December 2014 will be inserted. 

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 7 November 2014.

Associate:

Date: 7 November 2014