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

[2012] FamCA 961

FAMILY COURT OF AUSTRALIA

DIRECTOR-GENERAL, DEPARTMENT OF COMMUNITIES, CHILD SAFETY AND DISABILITY SERVICES & WILSON [2012] FamCA 961

FAMILY LAW - CHILDREN - Hague Convention - Application for Access - Where the Respondent and the requesting person have agreed to orders for access to the subject child - Where the Court is satisfied that such orders are 'desirable'

Hague Convention on the Civil Aspects of International Child Abduction
Family Law (Child Abduction Convention) Regulations 1986 (Cth)

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

RESPONDENT: Ms Wilson

FILE NUMBER: BRC 1791 of 2012

DATE DELIVERED: 16 November 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 16 November 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Crown Law

Orders

1. The requesting father Mr Wilson, born …1974, spend time with the child, A, born …2002, at the times and in the manner below:

(a)       For two (2) weeks in Australia commencing on 3 January 2013; and thereafter;

(b)       For one (1) week of each of the three school term holidays, one (1) of those in Australia and the other two (2) in New Zealand;

(c)       For two (2) weeks in the Christmas school holidays in New Zealand; the two (2) weeks to include Christmas Day on uneven numbered years and early January in the alternate years;

(d)       The dates and times of travel be provided to the mother, Ms Wilson, by the father, Mr Wilson, three (3) months in advance of the date of travel;

(e)       The costs of all of the child’s travel to be shared equally between the parents; including the cost of an adult to travel with the child if required, with the parties agreeing on the adult chosen to travel;

(f)       Telephone and/or Skype contact to occur at 7.00 pm New Zealand times on each Sunday or at such other times as may be agreed between the parents;

(g)       The father be at liberty to maintain e-mail contact with the child; and

(h)       The mother do all things necessary to encourage and facilitate access between the father and the child.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Director-General, Department of Communities, Child Safety and Disability Services & Wilson 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 1791 of 2012

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

Applicant

And

Ms Wilson

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. In this matter a Form 2 Application pursuant to the Hague Convention on the Civil Aspects of International Child Abduction (“the Convention”) was filed on 1 March 2012, seeking that the child, B (“the child”), born in 2002, be returned to New Zealand, said to be his country of habitual residence. The father and requesting applicant for that application is Mr Wilson, born in 1974. The Respondent to the proceedings is the child’s mother, Ms Wilson.

2. The parents married in 2005, and separated in early 2010. Following their separation, consent orders were made in the Family Court at Gisbon in New Zealand on 27 May 2010. It seems thereafter the parents made several attempts at reconciling their relationship, although ultimately without success. On 22 September 2010, protection orders were made against the father in New Zealand. Despite such orders, on the material filed on behalf of the Applicant, which is not contested by the Respondent in the event, the father exercised regular contact, including overnight contact, with the consent of the Respondent, until late 2011.

3. The father became aware in about late January 2012 that the Respondent and the child had left New Zealand, which was subsequently confirmed in an e-mail from the Respondent’s solicitors to the father’s then-solicitors on 8 February 2012. That confirmed that on 29 January 2012, the Respondent and the child had left New Zealand and entered Australia without any prior notice to, or consent of, the father.

4. Subsequent to the institution of those proceedings, the father states that he was able to contact the Respondent and spoke to the child, and on his evidence, the child made it clear to the father that he wished to remain in Australia with the Respondent, but would be happy to have holiday contact with the father. The father has also referred in material to the Respondent effectively begging him not to proceed with the Hague application for a return order, and that the Respondent promised the father that he would have contact with the child on holidays and other special occasions as well as telephone time. It was also agreed that the costs of such physical time would be shared. That application was consequently discontinued.

5. More recently, the father arranged to visit the child in Brisbane, but shortly before the father’s departure, the Respondent contacted the father and asserted that the time would have to be supervised and shortly before that visit was to occur, the Respondent actually cancelled the visit with no apparent reason. The father came to Australia regardless and tried to arrange time, but was unable to speak to the child while the father was in Australia.

6. That event led to the filing of the present application on 29 October 2012, being a Form 4 Application initiating proceedings for access within the meaning of the Hague Convention. That application sought a variety of orders, including orders for the child to spend time with the father both on occasions when the father would visit Australia and on other occasions when the child would travel to New Zealand for that purpose.

7. Subsequent to the filing of that application, the matter came before the Court and me on 2 November 2012. On that occasion, the Respondent, Ms Wilson, appeared and represented herself. An order was then made for the Respondent to file and serve a Notice of Address for Service and the matter was otherwise adjourned for further mention to today, on the basis that it was indicated on behalf of the Applicant, and indeed by the Respondent, that it was likely that consensual arrangements would be agreed to in terms of access within the meaning of the Convention being agreed.

8. The affidavit for which I have given leave to the Applicant to rely upon this morning confirms that Minutes of Consent were provided to the Respondent and that she signed and returned them and, in accompanying e-mails, expressed her satisfaction with such orders and explained in those e-mails that she would not be able to attend Court today. I note that on the material, the Respondent signed the Minutes of Consent only two days ago in the presence of a witness.

9. The Respondent was advised by the Applicant that if she did not appear today, or did not intend to appear today, she ought explain that directly to the Court. In the event, she has not done so, but I am comfortably satisfied that the Respondent was well aware that orders as signed by her would be made today, and equally I am satisfied that her non-appearance is not driven by any change of mind in terms of the orders she has signed, but rather would seem to be the Respondent’s assumption that it would be unnecessary for her to attend what she would see as a mere formality in terms of the Court formally making the orders with which she has agreed.

10. In all the circumstances, I am satisfied within the meaning of the relevant regulations of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) that it is “desirable” for the Court to make the orders agreed as between the Applicant and the Respondent as contained in the Minutes of Consent order that has been handed up to me and which I will admit and mark as Exhibit 1 on this application. I therefore make orders in terms of those signed consent orders now initialled by me and placed with the file. I otherwise remove all pending applications from the pending cases list.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 16 November 2012.

Associate:

Date:  21 November 2012