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

[2015] FamCA 49

FAMILY COURT OF AUSTRALIA

DIRECTOR-GENERAL, DEPARTMENT OF COMMUNITIES, CHILD SAFETY AND DISABILITY SERVICES & CRENNAN [2015] FamCA 49

FAMILY LAW – CHILD ABDUCTION – Hague Convention – Interim Orders – Child’s name to be placed on the Family Law Watch List – Matter adjourned

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

Secretary of the Attorney-General’s Department & McDonald (2013) 48 Fam LR 593

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

RESPONDENT: Ms Crennan

FILE NUMBER: BRC 10858 of 2014

DATE DELIVERED: 4 February 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 4 February 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Green

SOLICITOR FOR THE APPLICANT: Crown Law

SOLICITOR FOR THE RESPONDENT: Crane Paskins Law

Orders

It is ordered by consent until further order that:

1. The Respondent Mother, Ms Crennan born on … 1972, be restrained and an injunction is hereby issued restraining her or any other person from removing the child R (“the child”) born on … 2008 from the Commonwealth of Australia.

2. The Respondent Mother, Ms Crennan born on … 1972, advise the Applicant in writing, if she intends to change the said child’s usual day to day residence from the premises where she and the said child are currently residing namely B Street, Town A, in the State of New South Wales, at least one (1) week prior to any proposed move.

3. The Commissioner of the Australian Federal Police place the name of the child, R born on … 2008 (male) on the Family Law Watchlist at all international departure points in Australia and maintain his name on that system for a period of two (2) 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 child’s name from the Family Law Watchlist.

5. The Applicant be at liberty to forthwith notify the Australian Federal Police of these orders.

6. The child spends time with the Father at the Town C Contact Centre as and when can be facilitated by the Contact Centre.

7. The Father communicate with the child:

   a.   by sending cards, letters and parcels to the child at his usual residence;.

   b.   by telephone, or alternatively Skype, on one (1) occasion each week being Sunday evening between 6.00 pm and 7.00 pm AEST with the Father to initiate the call to the Mother’s home telephone number, or in the alterative.

8. A report be prepared pursuant to Regulation 26 of the Family Law (Child Abduction Convention) Regulations 1986, by a Family Consultant directed to matters that will assist the Court to determine the application presently before the Court, including but not limited to:

   a.   the nature of the relationship between the child and his Father, Mr G;

   b.   provide an opinion as to whether the child spending ongoing time with and having communication with the Father is in the child’s best interests;

c.   if the report writer is of the opinion that it is in the child’s best interests to spend ongoing time with and communicate with his Father, provide an opinion on:

(i)   the amount of time which the child should spend with his Father and the circumstances in which he should spend time with his Father, and

(ii)   the amount of time and manner in which the child should communicate with his Father,

which would be in his best interests; including considering specifically, the face-to-face time and communication periods sought by the Applicant in the Application Initiating proceedings.

1. The Respondent Mother to file and serve a Form 4A Answer and Cross Application on or before 4.00 pm on 16 February 2015.

2. The Respondent Mother to 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 27 February 2015.

3. The Applicant to file and serve any affidavits in reply on which the Applicant proposes to rely on or before 4.00 pm on 27 March 2015.

4. The proceedings be listed for hearing before the Honourable Justice Kent at 10.00 am on 24 April 2015 at the Family Court of Australia, Brisbane Registry.

5. There be liberty to apply.

Notation:

1. If after the expiration of the period set out in Order 3 above any parent seeks that the child’s name remain on the Watchlist 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 & Crennan 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 10858 of 2014

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

Applicant

And

Ms Crennan

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. By Application in Form 4 filed on 2 December 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 orders with respect to access to the child, R, born in 2008 who is currently six years of age.

2. It is contended by the applicant that the father has rights of access in relation to the child pursuant to articles of the French Civil Code.  It is also contended that those rights have been breached by the mother.  The final orders sought in the application are for the father to have access with the child on certain terms, including provisions for him to spend time with the child while the father is in Australia. 

3. The mother is represented today by Ms Crane in circumstances where there has been a recent grant of legal aid to the mother for that purpose, and it is fair to say more time is needed on the mother’s side to be ready for a contested hearing, if there is to be a contested hearing concerning the application. 

4. I have this morning raised with both parties some questions about the application, having regard to the issues or similar issues raised in this application, as was raised in a case of Secretary of the Attorney-General’s Department & McDonald (2013) 48 Fam LR 593 (“McDonald”).  I hasten to add, and as Mr Green has emphasised, there are differences between the facts of this case and the facts in McDonald.

5. However, fundamentally, as it seems to me, by reference to the discussion in McDonald, there are questions about the legitimacy of an application being made under the Regulations for rights of access in cases of this type. It is with these matters in mind that I sought and obtained from Mr Green the assurance on behalf of the Central Authority that if at a later time in the hearing of this application it is determined by the respondent mother that she will seek relief of the kind granted in McDonald, which was a stay of the application to allow an application under Part VII of the Family Law Act 1975 (Cth) (“the Act”) to be filed and served and for then the application under the Regulations to be stayed pending the hearing and determination of the Part VII application, that there ought be no prejudice to the mother in mounting that application.

6. With that assurance the parties have provided to the Court interim orders in draft form proposed to be made by the Court which includes the proceedings being listed for a further hearing before me on 24 April 2015.  I am prepared to make orders in terms of the proposed consent orders on that basis, likewise, that it may later be determined by the Court with the benefit of full argument on the issues, which is not possible today, that the orders made today are, ultimately, discharged on a basis akin to that in McDonald to which I have referred.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 4 February 2015.

Associate: 

Date:  4 February 2015