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

[2014] FamCA 620

FAMILY COURT OF AUSTRALIA

DIRECTOR-GENERAL, DEPARTMENT OF COMMUNITIES, CHILD SAFETY AND DISABILITY SERVICES & ROVO [2014] FamCA 620

FAMILY LAW – CHILD ABDUCTION – Hague Convention – Where the Respondent mother has yet to be served – Interim orders – Children’s names to be placed on the Family Law Watch List – Matter adjourned

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

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

RESPONDENT: Ms Rovo

FILE NUMBER: BRC 6545 of 2014

DATE DELIVERED: 1 August 2014

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 1 August 2014

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Crown Law

FOR THE RESPONDENT: No appearance

Orders

It is ordered that:

1. UNTIL FURTHER ORDER the Mother Ms Rovo born … 1975, be restrained and an injunction issue, restraining her or any other person from removing, or attempting to remove the said children, S (female) born … 2003 and B (female) born … 2006, from the Commonwealth of Australia.

1. UNTIL FURTHER ORDER the Mother Ms Rovo born … 1975, be restrained and an injunction issue, restraining her from changing the said children’s usual day to day residence from the premises where she and the said children are currently residing namely, Unit A, … I Street, Gold Coast Suburb C, Queensland, 4… .

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 Rovo born … 1975, and the said children, S (female) born … 2003 and B (female) born … 2006, 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 children’s names from the Family Law Watch List.

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

2. There be liberty to apply.

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. The Applicant cause to be served on the Mother a copy of this Order and special notice of the further mention date.

NOTATION:

A.If after the expiration of the period set out in Order 4 above any parent seeks that the children’s names 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 & Rovo 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 6545 of 2014

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

Applicant

And

Ms Rovo

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. By Application in a Form 2 filed on 24 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 children, S, born in 2003, who is currently 11 years of age, and B, born in 2006, who is currently seven years of age.

2. The requesting applicant under the Convention is the children’s father, Mr Rovo (“the father”), a New Zealand national.  The respondent to the application is Ms Rovo (“the mother”), a New Zealand national, who is currently residing with the subject children on the Gold Coast.  The father has rights of custody in respect of the children pursuant to the provisions of the Care of Children Act 2004 (NZ). 

3. Briefly stated, the final orders sought in this Application are that the mother return to the children to New Zealand and pay all associated costs.  Interim orders are sought which would restrain the mother from removing the children from Australia and changing the children’s usual day to day residence; place the names of the mother and the children on the Family Law Airport Watch List; and for the mother to surrender the mother’s and children’s passports to the Department of Communities, Child Safety and Disability Services (“the Department”).

4. At this stage, the Application is yet to be served upon the mother despite, the Court is informed, several attempts to do so in circumstances where the mother is apparently ensconced in a secure residential facility. 

5. According to the material in support of the Application, the mother and father commenced their relationship in 1992, married in January 2010, and their relationship involved various periods of separation and reconciliation.  The parties, apparently, are yet to divorce.  The two subject children are the only children of the relationship, and they were both born in Auckland, New Zealand.

6. The circumstances set out in the Application relevant to this Application were that the children were in the father’s care in early April 2014 and were due to return to the mother’s care on 4 April 2014.  On 3 April 2014, the mother and the maternal grandmother allegedly attended the home of the paternal grandparents, stating that they would be taking the children for a period of two hours.  The father refused, and an altercation took place. 

7. The police attended the residence, served the father with court documents with respect to complaints about assaults the mother had made against him on three separate occasions.  The father was arrested, detained in custody overnight and later charged with three counts of assault.  I note on the material that the father has pleaded not guilty to those charges, and he is currently released on bail, with the next court event set to occur on 6 August 2014.

8. The father deposes that whilst he was in custody, the children were removed from school, and he was unaware where they were.  The father has since learned through correspondence received from Work and Income New Zealand, (the New Zealand authority that pays social security benefits) that the mother is no longer receiving benefits as she is no longer resident in New Zealand.

9. The father subsequently learned through friends that the mother and the children are staying with one of the mother’s friends on the Gold Coast.  It appears the father has had no contact with the children since 3 April 2014.  On the father’s evidence, he was not made aware of, nor did he consent to, the children’s removal from New Zealand. 

10. I am satisfied, in the circumstances briefly described, that interim orders ought be made, notwithstanding the non‑service as yet upon the mother and, obviously, her non‑appearance today.  I am satisfied that there is a prima facie case established on the Form 2 Application and material in support.

11. Obviously, in circumstances where the mother has to be served and has not had an opportunity to be heard, there needs to be an early return date for her to be given that opportunity.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 1 August 2014.

Associate: 

Date:  1 August 2014