Director-General, Department of Communities, Child Safety and Disability Services & Garning (No 2)

[2012] FamCA 353

FAMILY COURT OF AUSTRALIA

DIRECTOR-GENERAL, DEPARTMENT OF COMMUNITIES, CHILD SAFETY AND DISABILITY SERVICES & GARNING (NO. 2) [2012] FamCA 353

FAMILY LAW – CHILD ABDUCTION – Hague Convention proceedings – where return orders were made - Whether a warrant should be issued for recovery of children pursuant to regulation 31 of the Hague Convention Regulations – where there is a real risk that these children will not be delivered to Brisbane International Airport as per return orders – where maternal grand mother has made threats against the children’s lives – where the children have not been delivered into the care of the Department of Communities, Child Safety and Disability Services, Queensland (the State Central Authority) – where a warrant is issued pursuant to regulation 31 of the Hague Convention Regulations authorising law enforcement authorities in this State and the Commonwealth to take possession of the four children – where the children are to live with a person nominated by the department prior to their return to Italy

Family Law (Child Abduction Convention) Regulations 1986 (Cth) Reg 13, Reg 41

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

RESPONDENT: Ms Garning

FILE NUMBER: BRC 1387 of 2011

DATE DELIVERED: 14 May 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 14 May 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr M. Green

SOLICITOR FOR THE APPLICANT: Crown Law

COUNSEL FOR THE RESPONDENT: Mr Page SC

SOLICITOR FOR THE RESPONDENT: Feeney Family Law

Orders

1. That a warrant (in accordance with Form 2C of the Family Law (Child Abduction Convention Regulations) issue authorising and directing the Marshal of the Family Court and the Commissioner and all federal agents of the Australian Federal Police and officers of the Queensland Police Service and all other police officers in all other States and Territories of the Commonwealth of Australia to take possession of the children E born … June 1997, C born … August 1998, D born … December 2001 and L born … May 2003, and deliver the said children to an officer of the Department of Communities, Child Safety and Disability Services (formerly known as “Department of Communities (Child Safety Services)”), or such person as may be nominated by her, or if the said children are located in another State or Territory of the Commonwealth, to a person nominated by the Associate Director-General, Department of Communities, Child Safety and Disability Services, Queensland, and that for the purposes of the exercise of the foregoing powers to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place where the said children may be or where there is any reasonable cause to believe the said children may be.

2. That the said children live with a person nominated by an officer of the Department of Communities, Child Safety and Disability Services pending their return to Italy.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Department of Communities, Child Safety and Disability Services v Garning 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 1387 of 2011

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

Applicant

And

Ms Garning

Respondent

REASONS FOR JUDGMENT

1. On 4 May 2012 on the application of the no longer correctly named Department of Communities (Child Safety Services), now named the Department of Communities, Child Safety and Disability Services, I made orders in these Hague Convention proceedings between the applicant and the respondent, Ms Garning, who is the mother of the four children the subject of the proceedings, namely E, born in June 1997; C, born in August 1998; D, born in December 2001 and L, born in May 2003.

2. Those orders provided that the respondent mother deliver those four children to the Brisbane International Airport at a time and a date not before 16 May 2012, nominated by an officer of the applicant.  That order was made consequent upon the dismissal of the mother’s appeal (from my original return order in respect of those four children) to the Full Court of this Court and the expiry of a stay of my original return order that occurred coincidentally to the making of the order by the Full Court of this Court dismissing the mother’s appeal.

3. The orders that I made on 4 May 2012 provided for the respondent mother not to be required to deliver the children to their father at the Brisbane International Airport before 16 May 2012. That order was made in that form because the mother had filed an application in the High Court for special leave to appeal to that Court from the dismissal of her appeal by the Full Court of this Court.  The evidence that was before me at the hearing of that application that culminated in my orders of 4 May 2012 satisfied me that the mother had until 8 May 2012 to file in the High Court her written submissions supporting her application for special leave to appeal to that Court and a draft notice of the appeal that she would seek to rely on in the event that the High Court granted her special leave.

4. I was, as I said in my reasons for the decision and orders I made on 4 May 2012, satisfied that there was merit in the submission made by senior counsel for the mother at the hearing of that application that the mother ought not be placed in a position where she was to make an application for a stay of my original return order prior to the filing of her written submissions and draft notice of appeal in the High Court.  I was satisfied in making the order that I made on 4 May that the mother had sufficient time within which to file an application for a stay of my original orders and to have it heard and determined prior to 16 May 2012.

5. This afternoon, Monday, 14 May 2012, the applicant Department or State Central Authority (as it is otherwise formally called under the Hague Convention Regulations applicable in this Court) makes urgent application for a warrant to issue pursuant to regulation 31 of the Hague Convention Regulations authorising law enforcement authorities in this State and Commonwealth to take possession of the four children as soon as they may be located by such law enforcement authorities, and for a further order that once recovered pursuant to that warrant the children live with a person nominated by an officer of the applicant, State Central Authority, pending their return to Italy.

6. The State Central Authority has filed in support of the application an affidavit sworn by an officer of the applicant, State Central Authority, namely Ms F, who works within the Court Services Branch of the applicant.  Ms F has sworn that affidavit this afternoon.  In that affidavit she deposes to a number of critically important facts that I accept are not actually in dispute on the hearing of this application this afternoon.  Those critically important facts are these:

   ·Over the weekend of 12 and 13 May articles appeared in the Courier Mail, the Sunday Mail and the Sunshine Coast Daily in respect of this matter and in which the four children, who are the subject of the proceedings, are asserted to be firm in their views that they do not wish to return to Italy with their father.

   ·That Ms F was verbally advised by the solicitor acting for the mother earlier today that she had been contacted yesterday by senior counsel acting for the mother – that is on Sunday, 13 May 2012 – and told by him that he had been contacted by a Ms X Garning, who is the maternal grandmother of the four girls, namely the respondent mother’s own mother.  Mr Page was reported by Ms Feeney to have told Ms Feeney that the maternal grandmother, Ms X Garning, informed him of a meeting that was to take place this afternoon, Monday, 14 May, and that if the meeting was not successful that she would murder the children.  Ms Feeney reported to Ms F that senior counsel had also told her that the maternal grandmother, Ms X Garning, had told him in that same conversation that she would encourage her daughter,  Ms Garning – that is, the respondent mother – to kill herself too.

   ·That Ms F immediately asked the mother’s solicitor to phone her client and request that she deliver the children to a named Child Safety Service Centre immediately.

   ·That Ms F attended at the … Child Safety Service Centre this afternoon, Monday, 14 May 2012, and, upon arrival, listened to part of a radio broadcast on ABC Radio where a woman who identified herself as Ms X Garning - that is, the same woman, the maternal grandmother of the four children - was speaking.  In that interview, Ms F said Ms X Garning spoke of the meeting arranged for that afternoon and that she could not say where the children were and when she was asked by the radio announcers what she thought would happen, said she thought there were two possibilities as to what might happen.  The first one was that the respondent mother, Ms Garning, had already “bolted” with the children - although the word “already” was not used, I consider it to be the implied in what was said. The second one was that the respondent mother, Ms Garning, was okay with the meeting and was bringing the children to it.

   ·Ms F telephoned and spoke with the solicitor for the mother after having heard that radio program conclude and was told by the solicitor for the mother that the mother did not consent.  Ms F says she took that to mean that the mother did not agree to bring the children to the service centre, as requested by Ms F. 

   ·Ms F then informed the mother’s solicitor that the State Central Authority would need to seek a warrant for the recovery of the children.

7. I observe, at this point, that my original return order did not actually require the children to be returned to Italy with their father but simply that they be returned to Italy. My original return order in fact was made on the basis that the mother might, indeed, choose to return to Italy with the four girls and, in such circumstances, it required the father to provide the mother with a lump sum of money to assist her in that return. When the matter was before me on 2 May for the hearing that culminated in my orders of 4 May it was made clear to me by senior counsel appearing for the mother that day that she has absolutely no intention of returning to Italy with the girls if they are returned pursuant to my original return order. Therefore, the orders I made on 4 May, on the application of the State Central Authority, provided for the girls to be delivered by the mother to the Brisbane Airport at a time to be nominated by the State Central Authority but not before 16 May. The evidence that was before me on 2 May that led to that date being chosen as the date not before which the girls were to be delivered to the airport was that their father intended travelling to Australia, arriving on 9 May, and returning to Italy with the girls in his care on 16 May.

8. The application was listed urgently before me this afternoon, at the conclusion of my hearing of the duty list.  I stood down, briefly, to enable Mr Page of senior counsel to attend and appear, after being told that he was coming.  Just as I was about to leave the Court, he appeared but I nevertheless gave the parties, through their legal representatives, some time to discuss the matter.  When the hearing resumed, Mr Page  - commendably, I say - volunteered to the Court that the content of paragraph 6 of Ms F’s affidavit, namely that which Ms F was deposing Ms Feeney had reported to her, insofar as it was reported to have been sourced from Mr Page himself, was indeed an accurate account of what he had conveyed to Ms Feeney and reflected accurately that which Ms X Garning, the maternal grandmother, had said to him, including the words “she would murder the children”. Mr Page confirmed that was a reference to Ms X Garning herself, saying that she herself would murder the children, not a reference to her own daughter, Ms Garning, the respondent mother.

9. Mr Page went on to inform the Court that, to his knowledge, Ms X Garning resides in Victoria and was there when she spoke to him on the phone on Sunday 13 May.  Nevertheless, again commendably, Mr Page informed the Court that he made no submissions opposing the granting by the Court of the recovery warrant. 

10. Regulation 14 of the Hague Convention Regulations applicable in this Court gives the State Central Authority, the applicant in the proceedings, the right to apply for an order for the issue of a warrant mentioned in regulation 31.  Regulation 31, specifically headed Warrants, says:

    For sub-paragraph 14(1)(a)(iii)………a warrant:

    (a)    Authorises a person named or described in the warrant, with such assistance as is necessary and reasonable and, if necessary and reasonable, by force:

    (i)        To find and recover the child; and

    (ii)If the person reasonably believes that the child is in, or on, a vehicle, vessel, aircraft or premises and the circumstances are so serious and urgent that the entry and search of the vehicle, vessel, aircraft or premises is justified:

    (A)     To stop, enter and search the vehicle, vessel or aircraft; or

    (B)     To enter and search the premises; and

    (iii)To deliver the child to the person named in the warrant; and

    (b)      must be in accordance with Form 2C.

11. I am satisfied, on the evidence that is before me, that there is a real risk that these children will not be delivered to Brisbane International Airport on 16 May 2012, as they have been requested to be, but further, having regard to and acknowledging the fact that it could simply be said that the issue of a warrant for their recovery is premature at this point, and should, in the normal course, await the failure of their mother to deliver them in accordance with that previous order by me on 4 May,  I go on to say that I am satisfied, on the evidence that is before me, that there is a real risk that the children have already been relocated to a place where they may not be able to be easily found, with a view to defeat the orders made by me on  4  May.

12. I was told from the bar table that enquiries were made of the schools that the children attended this morning and the school that the younger two children attended advised the State Central Authority’s enquiring officers that the two children - the two youngest girls - were collected from their school this morning by a person known to them and referred to simply as Aunty.  The school was told that they were being collected for the purposes of going to a meeting. Such meeting as I understand was intended to happen this afternoon was attended by no children at all.  Most critically, though, I am very concerned for the health and safety of these four girls, having regard to the evidence deposed to by Ms F, confirmed by Mr Page of senior counsel, in respect of the telephone conversation he had with the girls’ maternal grandmother.

13. I do not hesitate, in the circumstances of hearing that evidence and hearing the confirmation of it from senior counsel, as experienced and competent as Mr Page of senior counsel is, to make the order for the issue of the warrant for recovery of these children and I will do so.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 14 May 2012.

Associate: 

Date:  15 May 2012