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

[2013] FamCA 428

FAMILY COURT OF AUSTRALIA

DIRECTOR-GENERAL, DEPARTMENT OF COMMUNITIES, CHILD SAFETY AND DISABILITY SERVICES & WAKE [2013] FamCA 428

FAMILY LAW – CHILDREN – CHILD ABDUCTION – Ex parte injunctions

Family Law (Child Abduction Convention) Regulations 1986 (Cth)

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

RESPONDENT: Ms Wake

FILE NUMBER: BRC 4256 of 2013

DATE DELIVERED: 7 June 2013

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 7 June 2013

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Crown Law

FOR THE RESPONDENT: No appearance

Orders

IT IS ORDERED UNTIL FURTHER ORDER:

1. That the Respondent Mother, Ms Wake born … 1970, be restrained and an injunction issue restraining her, and her servants and/or agents, from removing, or attempting to remove or causing or permitting the removal of the said children, R born … January 2004 and E born … March 2007, from the Commonwealth of Australia.

2. That the children, R born … January 2004 and E born … March 2007, be restrained from leaving the Commonwealth of Australia.

3. That the Commissioner of the Australian Federal Police place the names of the Respondent Mother, Ms Wake born … 1970, and the said children, R born … January 2004 (male) and E born … March 2007 (female), on the All Ports Watch Alert System at all international departure points in Australia and maintain those names on that system for a period of two years.

4. Upon expiration of the period referred to in Order 3 and subject to any further Order of a court of competent jurisdiction, the Australian Federal Police will cause the removal of the children’s names from the Watch List.

5. 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.

6. That the Respondent Mother, Ms Wake born … 1970, 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 namely, … B Street, Town C.

7. That the Respondent Mother, Ms Wake born … 1970, surrender forthwith to an officer of the Department of Communities, Child Safety and Disability Services or their nominee all current passports relating to herself and the said children, R born … January 2004 and E born … March 2007.

8. That the Applicant be at liberty to forthwith notify the Australian Federal Police of these Orders.

9. That as soon as practicable, the Applicant cause a copy of these orders to be served on the Australian Federal Police.

10. That the Application be adjourned for further mention on 14 June 2013 at 2:15pm.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Director-General, Department of Communities, Child Safety and Disability Services & Wake 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 4256 of 2013

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

Applicant

And

Ms Wake

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. By application in Form 2 filed on 31 March 2013, the Director-General, Department of Communities, Child Safety and Disability Services in her capacity as the Central Authority pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”) applied for, inter alia, final orders that the children, R born in January 2004 and E born in March 2007 be returned to the country of New Zealand.

2. The requesting applicant within the meaning of the Regulations is the children’s father, Mr D (“the Father”) and the Respondent to the application is their mother, Ms Wake (“the Mother”).

3. Attempts have been made to serve the Respondent Mother with the application and I gave leave to the Applicant to file and read the affidavit of Mr F sworn on 6 June 2013 in relation to the attempts so far as service is concerned.

4. I am satisfied, on the contents of the Form 2 application and the material in support of it, that the Applicant establishes at least a prima facie case in respect of the making of a final order pursuant to regulation 16(3) of the Regulations. In particular, I am satisfied that there is a prima facie case that the Mother’s removal of the children from New Zealand on 21 April 2013 was wrongful and their retention thereafter wrongful. Of course, the case is yet to be controverted or contested so I express no final conclusion.

5. The material in support of the application includes the circumstances in which the Mother left New Zealand, including that it occurred at a time when the Father was then temporarily in Malaysia.  Given the circumstances in which the Mother allegedly departed New Zealand, I am satisfied that it is legitimate to hear the application at least for the purpose of making the ex parte Orders to which I have referred and which I have made. On that basis I make those orders.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 7 June 2013.

Associate: 

Date:  12 June 2013