DIRECTOR-GENERAL, DEPARTMENT OF COMMUNITIES, CHILD SAFETY AND DISABILITY SERVICES & CARLYLE

[2015] FamCA 742

FAMILY COURT OF AUSTRALIA

DIRECTOR-GENERAL, DEPARTMENT OF COMMUNITIES, CHILD SAFETY AND DISABILITY SERVICES & CARLYLE [2015] FamCA 742

FAMILY LAW – CHILD ABDUCTION – Hague Convention – Where the father seeks return of the children to New Zealand – Where the respondent mother is yet to be served with the Form 2 Application – Interim orders made until the mother has been served with the Form 2 Application – Children’s names placed on the Family Law Watchlist – Matter adjourned.

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

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

RESPONDENT: Ms Carlyle

FILE NUMBER: BRC 8230 of 2015

DATE DELIVERED: 9 September 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 9 September 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Crown Law

FOR THE RESPONDENT: No appearance

Orders

IT IS ORDERED UNTIL FURTHER ORDER:

1. The Respondent Mother, Ms Carlyle born … 1979, be restrained and an injunction issue restraining her and any other person from removing, or attempting to remove the children, B born … 2012 and C born … 2013, from the Commonwealth of Australia.

2. The Respondent Mother, Ms Carlyle born … 1979, 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, D Street, E Town, in the State of Queensland.

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 Carlyle born … 1979 and the said children, B born … 2012 (female) and C born … 2013 (female) on the Family Law Watchlist at all international departure points in Australia and maintain those names on the Family Law Watchlist for a period of two (2) years.

5. That upon expiration of the period referred to in Order 4 and subject to any further order of a court of competent jurisdiction the Australian Federal Police will cause the removal of the names referred to in Order 4 from the Family Law Watchlist.

6. That the Applicant be at liberty to forthwith notify the Australian Federal Police of these orders.

7. There be liberty to apply.

IT IS ORDERED THAT:

1. The proceedings be adjourned before the Honourable Justice Kent at 9.00 am on 18 September 2015 at the Family Court of Australia, Brisbane Registry.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Director General, Department of Communities, Child Safety and Disability Services & Carlyle 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 8230 of 2015

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

Applicant

And

Ms Carlyle

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. By Application in Form 2 filed on 28 August 2015, 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 interim and final orders with respect to the children, B, born in 2012, who is currently three years of age, and C, born in 2013, who is currently two years of age.

2. The requesting applicant under the Convention is the children’s father, Mr Killen, a New Zealand national.  I record he is no relation to me.  The respondent to the application is Ms Carlyle, the mother of the children, who is also a New Zealand national. 

3. The mother is believed to be in Australia and believed to be currently residing with the children at D Street, E Town, Queensland.  The application alleges that the mother caused the children to be wrongfully retained in Australia as at 19 December 2014.  There is evidence before the Court provided by expert evidence that the father has rights of custody under New Zealand law and that indeed the father sought to oppose the mother’s travel to Australia when she came here in December 2014.  The father brought an application to the Family Court in F Town, New Zealand, attempting to restrain the mother’s travel or at least the children’s removal from New Zealand at that time. 

4. The evidence of the applicant establishes that in answer to the application of the father in the New Zealand Family Court, the mother provided evidence to that court that she had purchased return tickets for her and the children to return to New Zealand on 19 December 2014.  There is evidence in the application that the judge of the Family Court at F Town referred to that evidence in expressing the judge’s determination that a restraint was not necessary, in light of the evidence.  The judge did record that, under the terms of the Hague Convention, the children’s usual place of residence is New Zealand. 

5. The current application before me is yet to be served upon the mother.  An adjournment of the application has been sought, and I propose to adjourn it until 9.00 am on 18 September 2015. 

6. In the meantime, interim orders are sought, in what may be described as in the usual terms, so as to maintain the status quo as it were, in terms of the mother not further moving with the children, pending the determination of this application. 

7. I am satisfied that having regard to the Form 2 Application and the material filed in support there is at least a prima facie case for a return order to be made and on that basis I am satisfied that it is appropriate to make the interim orders sought by the applicant.  These include provision for liberty to apply which will allow the mother to re-list the application prior to 18 September 2015.  I therefore make the interim orders as per the draft provided and now initialled by me and placed with the file.  Otherwise I adjourn the application to 9.00 am on 18 September 2015.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 9 September 2015.

Associate:

Date:  10 September 2015