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

[2013] FamCA 481

FAMILY COURT OF AUSTRALIA

Director-General, Department of Communities, Child Safety and Disability Services & McMurray [2013] FamCA 481

FAMILY LAW – CHILD ABDUCTION – Hague Convention – Where the Respondent Father consents to the return of the child to New Zealand

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

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

RESPONDENT: Mr McMurray

FILE NUMBER: BRC 2576 of 2013

DATE DELIVERED: 14 June 2013

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 14 June 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Green

SOLICITOR FOR THE APPLICANT: Crown Law

FOR THE RESPONDENT: No appearance

Orders

IT IS ORDERED BY CONSENT

1. That the child C born … January 2000, be returned to New Zealand and for the purposes of giving effect to this order:

   (a)The said child leave the Commonwealth of Australia on or before Friday 6 July 2013;

   (b)That pending the said child, C born … January 2000, returning to New Zealand, the Respondent Father Mr McMurray born … 1981, 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 female child C born … January 2000 from the Commonwealth of Australia;

   (c)That pending the return of the said child, C born … January 2000 to New Zealand, the Respondent Father, Mr McMurray born … 1981, continue to 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, B Street, Suburb D or E Street, Suburb F;

   (d)That paragraphs 1 – 7 inclusive of the orders of the Honourable Justice Kent made 15 April 2013 be discharged forthwith;

   (e)That subject to sub-paragraph (f) below, the Commissioner of the Australian Federal Police and all Federal Agents of the Australian Federal Police retain the names of the Respondent Father, Mr McMurray born … 1981 and the said child C born … January 2000, on the All Ports Watch Alert System at all international departure points in Australia;

   (f)That the said child C born … January 2000, and the Respondent Father, Mr McMurray be removed from the All Ports Watch Alert System by officers/agents of the Australian Federal Police upon receipt of a letter from an officer of the Department of Communities, Child Safety & Disability Services advising of the travel arrangements made for the said child to return to New Zealand, from 12.00 am on the date nominated for the said travel in the letter;

   (g)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 required and empowered to take all necessary steps to give effect to these orders;

   (h)That to facilitate the return of the said child, C born … January 2000 to New Zealand, Ms G, Department of Communities, Child Safety and Disability Services or her nominee be at liberty to release all current passports relating to the child for the purposes of the said child's return to New Zealand; and release the Respondent Father’s passport to him or his nominee upon request;

   (i)That the Respondent Father, Mr McMurray, pay all the necessary expenses associated with returning the child to New Zealand, including the cost of airfares and departure taxes (if any) for the child to travel from Brisbane Airport to New Zealand; and 

   (j)That liberty to apply be granted to the applicant to seek any further orders necessary to allow her to make such arrangements as are necessary to facilitate and ensure the return of the child in accordance with this order.

2. That all other Applications be dismissed.

3. That there be liberty to apply.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Director-General, Department of Communities, Child Safety and Disability Services & McMurray 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 2576 of 2013

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

Applicant

And

Mr McMurray

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. By application in Form 2 filed on 8 April 2013 the Director-General, Department of Communities, Child Safety and Disability Services in her capacity as a State Central Authority within the meaning of the Family Law (Child Abduction Convention) Regulations 1986 applies for a return order within the meaning of those regulations in respect of the child, C born in January 2000.

2. The Form 2 application and the materials filed in support of it established a prima facie case for a return order to be made on the basis that that material establishes each of the matters that an applicant is required to establish pursuant to sub regulation 16(3) of the relevant regulations.

3. By further affidavit filed today it is clear that the relevant date of wrongful retention expired as at midnight on 15 July 2012.  In the result, whilst the Respondent Father appeared at an interim stage of the proceedings when interim orders were made, the position has now been reached that the Respondent does not contest any of the material of the Applicant in support of the application, nor does he contest the making of a return order.  In fact, the Respondent confirms his consent to have the child returned to New Zealand on or before Friday 6 July 2013. 

4. Whilst the Respondent Father does not appear in person or by telephone on this hearing, he has indicated through communication with the Court, that he is unable to do so because of his current work commitments.  It can be inferred though from that contact that the Father was well aware of the hearing today and it is clear from the interim orders that a hearing today was to occur. 

5. In those circumstances and for those reasons I am satisfied that a return order and associated orders should be made on a final basis in terms of the terms of the consent agreed between the parties, which is now initialled by me and placed with the file.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 14 June 2013.

Associate: 

Date:  24 June 2013