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

[2014] FamCA 156

FAMILY COURT OF AUSTRALIA

DIRECTOR-GENERAL, DEPARTMENT OF COMMUNITIES, CHILD SAFETY AND DISABILITY SERVICES & MAWBORNE [2014] FamCA 156

FAMILY LAW – CHILD ABDUCTION – Hague Convention – Interim Orders – Obligations of the Central Authority under the Convention – Order made requiring the Central Authority to make all necessary enquiries and requests to obtain various documents sought by the Respondent from various entities/authorities in New Zealand

Family Law (Child Abduction Convention) Regulations 1986

Harris & Harris (2010) FLC 93-454
Laing v Central Authority (1999) 24 Fam LR 555
RCB v Forrest (2012) 247 CLR 304
Re F (Hague Convention: Child’s objections) (2006) FLC 93-277

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

RESPONDENT: Mr Mawborne

FILE NUMBER: BRC 1640 of 2014

DATE DELIVERED: 17 March 2014

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 17 March 2014

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Crown Law

COUNSEL FOR THE RESPONDENT: Mr Green

SOLICITOR FOR THE RESPONDENT: Harington Family Lawyers

Orders

IT IS ORDERED THAT

The Applicant or his authorised officers make all necessary enquiries and requests, either through the Commonwealth Central Authority or with the New Zealand Central Authority – or directly with the entities/authorities listed in column A below and seek to obtain documents of a type or classes listed in column B that are relevant to the matters in issue in these proceedings.

A
Entity/Authority

B
Types or Classes of Documents

(a)   Privacy Commissioner for the Police, Police National Headquarters, 180 Molesworth Street, Wellington, New Zealand 6011.

Police attendance records police notes, audio / video tapes, photographs, statements, bench charge sheets, domestic violence related orders from January 2011 to the present day in relation to the following persons –

(a)   Ms B (date of birth …/1968) of  C Street, Town E;

(b)  R (date of birth …/2002) of C Street, Town E;

(c)   N (date of birth …/2004) of C Street, Town E; and   

(d)  Mr D of F Street, Town G.

(b) Deleted as no longer pressed as referred to in Ex Tempore Reasons for Judgment delivered 17 March  2014

(c)   J Family Services

New Zealand

Attendance records, audio / video tapes, interviews and reports from January 2011 by counsellors, case workers and guidance officers in relation to:

(a)   Ms B (date of birth …/1968) of  C Street, Town E;

(b)  R (date of birth …/2002) of C Street, Town E; and

(c)   N (date of birth …/2004) of C Street, Town E.  

(d)  K District Health Board

New Zealand

Admission records, from January 2011 to the present day, including patient care and medical files reports and assessments by Hospital staff including practitioners, psychologists, child welfare workers and counsellors in relation to: 

(a)   R (date of birth …/2002); and

(b)  N (date of   birth …/2004).

1. The Applicant within 7 business days of receiving the documents:

   (a)       provide copies of the documents as they are obtained from time to time:

   (i)to the Respondent, and

   (ii)to the person appointed to prepare a report pursuant to paragraph 13 of the orders of the Honourable Justice Kent made on 28 February 2014.

   (b)file a copy of the documents obtained as a bound bundle on or before 1  May 2014.

2. Where the enquiries referred to in paragraph 1 above, reveal that relevant documents do not exist or do exist and cannot be obtained, the Applicant inform the Respondent in a timely way but in any event, on or before 7 April 2014, in writing, of what attempts were made to obtain the documents and the response received, and file a copy of the communication in the court.

3. The person appointed to prepare a report pursuant to paragraph 13 of the orders of the Honourable Justice Kent made 28 February 2014 be provided with a copy of the affidavit of Ms H filed 17 March 2014.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Director-General, Department of Communities, Child Safety and Disability Services & Mawborne 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 1640 of 2014

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

Applicant

And

Mr Mawborne

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. By Application in Form 2, filed on 21 February 2014, the Director-General, Department of Communities, Child Safety and Disability Services, in the capacity of State Central Authority pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (“the Regulations”), applies for a return order with respect to two children, namely R, born in 2002, and N, born in 2004. It is contended that those children were removed from their habitual residence in New Zealand without the mother’s consent.

2. The applicant, under the Convention, is Ms B, born in 1968, the mother of the children.  The Respondent is the children’s father, Mr Mawborne born in May 1963 who resides in Australia.

3. The children have visited the father for holidays in the past for periods of about two weeks during each December in 2010, 2011, and in June 2012 and December 2013.  It was agreed that the children would travel to Australia for another visit from 25 December 2013 until 11 January 2014.

4. In the event the children remain in Australia, and the father, agitates in response to the Application brought by the Central Authority, four issues, namely:

   ·that the mother consented to the children remaining here;

   ·alternatively, that she acquiesced in the children remaining here;

   ·alternatively, that there would be grave risk within the meaning of the Regulations for the children to be returned to New Zealand; and,

   ·finally, the objection ground is raised.

5. On the first return date of the Application on 28 February 2014 there were a number of categories of documents which the respondent father sought to be obtained from New Zealand sources said to be relevant to two issues in particular, namely, the question of grave risk and the question of objection. 

6. On that occasion I adjourned the matter to enable the Central Authority to have a further opportunity to consider the material that was sought by the father. 

7. I am satisfied on the material before me that the material sought by the father is not in the nature of a fishing expedition. There are, in the material that has been provided to date, matters raised in relation to R’s health, and also in relation to the adverse effects potentially upon his health, of his interactions with one Mr D. 

8. Mr D is said, on the father’s case, to be the mother’s partner, although the Central Authority contends before me this morning that the mother and Mr D are no longer in a relationship.  That has yet to be determined or, indeed, is not the subject of evidence that will be provided before the trial of this matter. 

9. The Central Authority opposes the orders sought today being that the Central Authority be obliged to make enquiries and requests for the further categories of documents sought by the father, essentially on a number of bases but, primarily, on the basis that, because the father would bear the onus of making out the relevant exceptions, either grave risk or objection, that it should be the father who has responsibility. On the Central Authority’s contention, the father should have sole responsibility for obtaining the relevant records in New Zealand to make out any ground of defence in respect of which he bears the onus.

10. There is no doubt that at the trial of these proceedings the father will bear the onus of making out any relevant ground of defence under the Regulations. Undoubtedly, he will have to establish that it can be said that the children are at grave risk, within the meaning of the Regulations, of a return to New Zealand or that their objection shows a strength of feeling of the kind described in the Regulations.

11. However, it seems to me that the fact that the father bears the onus of proof on grounds of defence does not mean that the Central Authority has no role to play in respect of the relevant information. 

12. In Laing v Central Authority (1999) 24 Fam LR 555, Kay J as a member of the Full Court observed at paragraph 93:

    …There is weight in the submission that the Central Authority needs to act to some degree as an honest broker. Its role may be likened to that of a Crown prosecutor who is required to put before the court matters which might assist the accused as well as matters which might lead to a conviction. The Central Authority’s obligation is not to secure the return of the child but to implement the requirements of the Convention.

13. After setting out the terms of regulation 5 as it then existed Kay J continued at paragraph 94:

    If in implementing the requirements of the Convention it obtains the return of a child who ought to be returned then it (a reference to the Central Authority) is carrying out its function. If it draws to the court circumstances which might lead the court to make an order other than the return of a child then it is also carrying out its function.

14. That statement has been cited with approval by subsequent Full Courts including in Re F (Hague Convention: Child’s objections) (2006) FLC 93-277 and Harris & Harris (2010) FLC 93-454. Indeed it can be seen that in RCB v Forrest (2012) 247 CLR 304 the High Court at [22] cited with approval the judgment of Kay J in Laing and of the Full Court in Harris as to the role of the Central Authority.

15. It thus seems to me that the orders sought to be made by the father are reasonable in the sense of giving effect to the Central Authority’s obligations, in the manner described by Kay J, to ensure that the Court has available to it all relevant information upon which the Court will consider orders to give effect to the Convention.

16. For these reasons, I make orders in terms of the draft provided on behalf of the father, with the deletion of subparagraph (b), an order which Counsel for the father confirmed was no longer pressed.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 17 March 2014.

Associate:     

Date:  19 March 2014