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

[2013] FamCA 410

FAMILY COURT OF AUSTRALIA

DIRECTOR-GENERAL, DEPARTMENT OF COMMUNITIES, CHILD SAFETY AND DISABILITY SERVICES & FOSSETT [2013] FamCA 410

FAMILY LAW – 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: Mr Fossett

FILE NUMBER: BRC 4232 of 2013

DATE DELIVERED: 30 May 2013

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 30 May 2013

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Crown Law

FOR THE RESPONDENT: No appearance

Orders

IT IS ORDERED UNTIL FURTHER ORDER:

1. That the Respondent Father Mr Fossett born … 1987, be restrained and an injunction is hereby issued, restraining him and any other person from removing, or attempting to remove or causing or permitting the removal of, the said female child M born … December 2009 from the Commonwealth of Australia.

2. That the child M born … December 2009 be and is hereby restrained from leaving the Commonwealth of Australia.

3. That the Australian Federal Police place the names of the Respondent Father Mr Fossett born … 1987 and the said child M born … December 2009 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. That 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 names of the Respondent Father and the child 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 requested and authorised to take all necessary steps to give effect to these Orders.

6. That the Respondent Father Mr Fossett born … 1987 be restrained and an injunction is hereby issued, restraining him from changing the said child’s usual day to day residence from the premises where he and the said child are currently residing namely, of unknown address.

7. That the Applicant cause the Respondent Father to be served with a sealed copy of the Form 2 Application Initiating Proceedings filed 30 May 2013 together with a sealed copy of these Orders forthwith.

8. That upon being served with a copy of this Order, the Respondent Father Mr Fossett born … 1987 surrender forthwith to Ms B, Department of Communities, Child Safety and Disability Services or her nominee all current passports relating to himself and the said child, M born … December 2009.

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

10. That there be liberty to apply.

11. That the further hearing of this Application be adjourned to 10:00am on 7 June 2013.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Director-General, Department of Communities, Child Safety and Disability Services & Fossett 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 4232 of 2013

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

Applicant

And

Mr Fossett

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. By application in Form 2 filed today, the Director-General Department of Communities, Child Safety and Disability Services in her capacity as Central Authority under the Family Law (Child Abduction Convention) Regulations 1986 (Cth) makes application for, amongst other things, a return order in respect of the child M born in December 2009, (“the child”).

2. The application is yet to be served upon the Respondent Father, Mr Fossett, in circumstances where the evidence establishes that he departed New Zealand with the child without the knowledge or consent of the Mother and, moreover, in breach of his then bail conditions concerning matters before the District Court in New Zealand. 

3. On the material contained in the application and the affidavit material in support of the application, I am satisfied that the Applicant establishes a prima facie case in respect of the requirements under the Convention, specifically, the elements of sub-regulation 16(3). Of course, those matters are yet to be tested, but on the basis of the matters set out in the application, I accept that it is legitimate for Interim Orders to be made on an ex parte basis, pending the further hearing and determination of the matter.

4. I therefore make Orders in terms of the draft submitted on behalf of the Applicant, including an Order that the matter be again mentioned next Friday 7 June 2013.

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 30 May 2013.

Associate: 

Date:  3 June 2013