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

[2014] FamCA 653

FAMILY COURT OF AUSTRALIA

DIRECTOR-GENERAL, DEPARTMENT OF COMMUNITIES, CHILD SAFETY AND DISABILITY SERVICES & LAFOY [2014] FamCA 653

FAMILY LAW – CHILD ABDUCTION – Hague Convention – Where the Respondent mother has consented to interim orders being made – Children’s names to be placed on the Family Law Watch List – Matter adjourned

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

APPLICANT: Department Of Communities, Child Safety and Disability Services

RESPONDENT: Ms Lafoy

FILE NUMBER: BRC 6743 of 2014

DATE DELIVERED: 12 August 2014

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 12 August 2014

REPRESENTATION

SOLICITOR FOR THE APPLICANT:	Crown Law
FOR THE RESPONDENT:	In person by telephone

Orders

It is ordered that:

1. UNTIL FURTHER ORDER the Mother, Ms Lafoy born … 1991, be restrained and an injunction issued, restraining her or any other person from removing, or attempting to remove the child, B (male) born … 2012, from the Commonwealth of Australia.

1. UNTIL FURTHER ORDER the Mother, Ms Lafoy born … 1991, be restrained and an injunction issue, restraining her from changing the said child’s usual day to day residence from the premises where she and the child are currently residing namely, C Street, Suburb D, Queensland.

1. 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.

1. UNTIL FURTHER ORDER the Commissioner of the Australian Federal Police place the names of the Mother, Ms Lafoy born … 1991, and the said child, B (male) born … 2012, on the Family Law Watch List at all international departure points in Australia, and maintain those names on that system for a period of two (2) years.

1. 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 said child’s name from the Family Law Watch List.

1. UNTIL FURTHER ORDER the Mother, Ms Lafoy born … 1991, surrender forthwith to an officer from the Department of Communities, Child Safety and Disability Services all current passports relating to herself and the said child, B born … 2012.

1. The Applicant be at liberty to forthwith notify the Australian Federal Police of these Orders.

It is further ordered that:

1. The proceedings be listed for further mention before the Honourable Justice Kent at 9:30 am on 18 August 2014 at the Family Court, Brisbane Registry.

1. There be liberty to apply.

Notation:

A.If after the expiration of the period set out in Order 4 above any parent seeks that the child’s name remain on the Watch List 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 & Lafoy 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 6743 of 2014

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

Applicant

And

Ms Lafoy

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. By Application in Form 2 filed on 29 July 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 final orders with respect to the child, B (“the child”) born … 2012, who is currently 18 months old.

2. The requesting applicant under the Convention is the child’s father, Mr E (“the father”), a Mauritian national.  The respondent to the Application is Ms Lafoy (“the mother”), a Mauritian national currently residing with the child at C Street, Suburb D in Queensland.

3. Based upon the Form 2 Application and the material filed in support of it, the father has rights of custody in respect of the child pursuant to s 9 Chapter 1 of the Mauritian Civil Code (articles 371-372).

4. The final orders sought on the Application are that the mother return the child to Mauritius and pay all associated costs.  The father deposes in support of the Application that the parties were married in Mauritius in 2012 and separated in or around April 2014.  They are not divorced.  The subject child is the only child of the relationship and, as noted, was born in 2012 in Queensland.  The mother and father subsequently returned to Mauritius to live on 27 April 2013.

5. The father deposes in his material that following the arrival of his mother-in-law from Denmark to Mauritius on 10 April 2014 the parental relationship deteriorated significantly, ultimately leading to the parents’ separation.  On the father’s version, which remains untested, on 5 May 2014 the mother and the maternal grandmother attended the father’s residence in Mauritius and removed the child who was then being cared for by relatives.

6. The father deposes that he subsequently learned that the mother had travelled to Australia with the child some time in May 2014.  The father asserts that since the mother travelled with the child to Australia in May 2014 he has not had any contact with the child despite his repeated attempts to contact the mother via telephone and Facebook.  The father maintains on his evidence that the mother relocated with the child to Australia without his knowledge or consent.

7. This is the first return date of the subject Application and as is usual the applicant seeks interim orders together with seeking an adjournment of the Application until next Monday at 9.30 am, that being Monday 18 August 2014. 

8. The respondent mother has yet to be formally served with the Form 2 Application and the material filed in support of it.  At this stage she has only had a discussion with an officer of the Department of Communities, Child Safety and Disability Services (“the Department”) in relation to the Application.  It is her intention to obtain legal advice in relation to the Application.

9. I took the time this morning to explain to the mother the orders sought on an interim basis pending the further hearing of the Application which, of course, will be only in a week’s time.  The mother expressed her consent to each of the orders which were explained to her in the course of the hearing today. 

10. I am satisfied on the Form 2 Application and the material filed in support of it that there is at least a prima facie case, albeit on evidence which is yet to be tested by the mother and absent her response to that material for the orders sought.

11. For these reasons, I make the interim orders which are sought by the applicant which are not opposed by the mother including an order that the application be adjourned for further mention to 9.30 am on 18 August 2014.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 12 August 2014.

Associate:

Date:  12 August 2014