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

[2015] FamCA 494

FAMILY COURT OF AUSTRALIA

DIRECTOR-GENERAL, DEPARTMENT OF COMMUNITIES, CHILD SAFETY AND DISABILITY SERVICES & IBBOTT [2015] FamCA 494

FAMILY LAW – CHILD ABDUCTION – HAGUE CONVENTION – Interim Orders – Where the father has instituted parenting proceedings which were transferred to the Family Court of Australia – Where the mother seeks a stay of the parenting proceedings pending determination of the Hague Convention proceedings – Ordered by consent that the stay application and Hague Convention application be listed together – Child’s name to be 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: Mr Ibbott

FILE NUMBER: BRC 5440 of 2015

DATE DELIVERED: 26 June 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 26 June 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANT:	Crown Law
SOLICITOR FOR THE RESPONDENT:	Ms Gagliardi, Odyssey Lawyers

Orders

IT IS ORDERED UNTIL FURTHER ORDER THAT:

(1)The Respondent Father Mr Ibbott born … 1989 be restrained and an injunction issue restraining him and any other person from removing, or attempting to remove the child, B born … 2012, from the Commonwealth of Australia.

(2)The Respondent Father Mr Ibbott born … 1989 be restrained and an injunction issue restraining him from changing the said child’s usual day to day residence from the premises where the said child is currently residing with the Mother namely, C Street, Suburb D 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 Father Mr Ibbott born … 1989 and the said child, B (female) born … 2012, (if not done already) 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)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)The Applicant be at liberty to forthwith notify the Australian Federal Police of these orders.

(7)The Respondent Father to file and serve a Notice of Address for Service on or before 4.00 pm on 3 July 2015.

(8)The Respondent Father to file and serve a Form 2A Answer and Cross Application on or before 4.00 pm on 13 July 2015.

(9)The Respondent Father 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 13 July 2015.

(10)The Applicant file and serve any affidavits in reply on which the Applicant proposes to rely on or before 4.00 pm on 27 July 2015.

1. The proceedings be listed for hearing before the Honourable Justice Hogan at 10.00 am on 10 August 2015 at the Family Court, Brisbane Registry.

2. There be liberty to apply.

NOTATION:

1. IT IS NOTED that the hearing of the stay application, filed in proceedings numbered BRC10172/2014 Ibbott & Barritz in the Family Court of Australia under Part VII of the Family Law Act 1975 (Cth) for parenting orders, listed for 16 July 2015 is de-listed and re-listed at 10.00 am on 10 August 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 & Ibbott 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 5440 of 2015

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

Applicant

And

Mr Ibbott

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. By Application in Form 2 filed on 17 June 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 final orders with respect to the child, B born in 2012, who is currently two years of age and has both Australian and Ecuadorian citizenship.

2. The requesting applicant under the Convention is the child’s mother, Ms Barritz, an Ecuadorian national.

3. The respondent to the application is Mr Ibbott, an Australian national.

4. The mother is currently in Australia and residing with the child in a suburb of Brisbane.

5. It is alleged in the application that the father caused the child to be wrongfully retained in Australia when he caused her name to be placed on the Family Law Watch List which prevented the child from leaving Australia with the mother as she sought to do on 9 December 2014.

6. There are parenting proceedings on foot, which were instituted in the Federal Circuit Court and now transferred to this Court.  Some interim orders seemingly have been made in those proceedings, including placement of the child’s name on the Family Law Watch List.

7. With respect to the parenting proceedings and Hague Convention proceedings, there was an application for a stay of the parenting proceedings previously listed for 16 July 2015 before me, but all parties now agree that the best use of the resources of both the Court and the respective parties is to list the stay application with the final hearing of the Hague Convention application, which is to be listed on 10 August 2015.

8. I am satisfied on the Form 2 Application and the material filed in support of it that there is at least sufficient established in the Hague Convention application to found the making of the interim orders that are sought in that, although of course the merits of that application are ultimately to be determined on 10 August 2015.

9. The respondent father by his solicitor consents to the interim orders that have been sought to be made including certain injunctions and in relation to the filing of material to facilitate the final hearing of the Convention application on the 10 August 2015.

10. The requesting applicant mother is obviously represented in the parenting proceedings and her solicitor, Ms Foley, appeared today as a courtesy to the Court which is acknowledged.  The interests of the child in the parenting proceedings are independently represented by an Independent Children’s Lawyer (“the ICL”) appointed for that purpose, and likewise the ICL appeared today and the courtesy of that is also acknowledged.

11. Whilst the ICL raised the prospect of her being included as a party in the Hague Convention proceedings, it was acknowledged by the ICL that such an application would not meet the threshold set out in the Regulations for an order for the appointment of an ICL in the Hague Convention proceedings.  

12. However, because of the existence of the parenting proceedings and the fact that the stay application is to be heard on 10 August 2015, obviously there is potential participation at least to that extent by the ICL in the hearing on 10 August 2015.

13. For these reasons I make orders in terms of the draft orders that have been placed before me, with the addition of the times and dates referred to in the exchanges between the bench and bar table this morning, and I otherwise order, within the parenting proceedings, that the application for a stay of the parenting proceedings be adjourned also to 10.00 am on 10 August 2015 before Hogan J.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 26 June 2015.

Associate: 

Date:  26 June 2015