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

[2015] FamCA 3

FAMILY COURT OF AUSTRALIA

DIRECTOR-GENERAL, DEPARTMENT OF COMMUNITIES, CHILD SAFETY AND DISABILITY SERVICES & RYALS [2015] FamCA 3

FAMILY LAW – CHILD ABDUCTION – Hague Convention – Interim Orders – Children’s names to be placed on the Family Law Watchlist – Matter adjourned

Family Law (Child Abduction) Regulations 1986 (Cth)
Guardianship of Infants Act 1964 (IE)

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

RESPONDENT: Mr Ryals

FILE NUMBER: BRC 11601 of 2014

DATE DELIVERED: 9 January 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 9 January 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Thomas

SOLICITOR FOR THE RESPONDENT: Ms Barbour

Orders

IT IS ORDERED UNTIL FURTHER ORDER THAT:

1. The Respondent Father Mr Ryals born … 1979 be restrained and an injunction issue restraining him and any other person from removing, or attempting to remove the said children, J born … 2006 (female), T born … 2008 (female) and N born … 2011 (female) from the Commonwealth of Australia.

2. The Respondent Father Mr Ryals born … 1979 be restrained and an injunction issue restraining him from changing the said children’s usual day to day residence from the premises where he and the said children are currently residing namely, … B Street, Town C, 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 Ryals born … 1979 and the said children J born … 2006 (female), T born … 2008 (female) and N born … 2011 (female) 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 Respondent Father Mr Ryals born … 1979 surrender forthwith to an officer of the Department of Communities, Child Safety and Disability Services all current passports relating to himself and the said children, J born … 2006, T born … 2008 and N born … 2011.

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

8. The Respondent Father to file and serve a Notice of Address for Service on or before 4.00 pm on 9 January 2015.

9. The Respondent Father to file and serve any further affidavits of evidence in chief to be relied upon at the hearing of the Application on or before 4.00 pm on Friday 23 January 2015.

10. The Applicant to file and serve any affidavits in reply on which the Applicant proposes to rely upon on or before 4.00 pm on Friday 30 January 2015.

11. The proceedings be listed for hearing before the Honourable Justice Kent at not before 11.00 am on Tuesday 3 February 2015 at the Family Court, Brisbane Registry.

12. 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 children’s names remain on the Watchlist 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 & Ryals 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 11601 of 2014

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

Applicant

And

Mr Ryals

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. By Application in Form 2 filed on 22 December 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) Regulations 1986 (Cth) (“the Regulations”), applies for final orders with respect to the children, J born in 2006, T born in 2008 and N born in 2011 to be returned to the country of Ireland. 

2. The requesting applicant under the Convention is the children’s mother, Ms Harris (“the mother”) an Irish national.  The respondent to the Application is the children’s father, Mr Ryals (“the father”), an Australian national currently residing with the children at B Street, Town C in the State of Queensland.  The Form 2 Application filed on 22 December 2014 details information regarding the guardianship of children in Ireland, and reference is made to s 6(4) of the Guardianship of Infants Act 1964 in Ireland. 

3. It does not seem to be in issue that, as the mother and father never married, the mother is the legal guardian of the children, and there has been no order of the court nor statutory declaration filed pursuant to the Irish legislation as to disturb the position that the mother is the guardian of the children.  It would seem to follow, at least on a prima facie basis, that the mother has rights of custody within the meaning of the Regulations. 

4. Pursuant to the material contained in the Form 2 Application, the parents’ de facto relationship came to an end in about August 2013.  The mother deposes that she, the children and the father had been living in South Africa as a result of the father’s employment, but that she and the children returned to Ireland following their separation in August 2013.  It seems that thereafter the father visited the mother and children in Ireland from time to time, including in October 2013 for a period of a little over a week before he returned to Australia.  The mother deposes that, since October 2013, the father has returned to Ireland on two or three occasions. 

5. In late October 2014, the father visited Ireland and the mother deposes that on Sunday 9 November 2014 the father asked to take the three children with him to Town A to visit a friend with whom he worked in South Africa.  The mother deposes to agreeing to that proposal, but that the arrangement was for the children to be returned to her on the following Tuesday morning for them to resume their school attendance, at least so far as the oldest or older children are concerned. 

6. The mother deposes that it was on Tuesday 11 November 2014 at approximately 11.30 am that she received a telephone call from the father from an Australian phone number, advising her that he was in Australia with the three children.

7. On this, the first return date of this Application, the father is represented by a solicitor, who relies upon his affidavit sworn on 8 January 2015 and his Form 2A Response or Answer.  The father opposes the return of the children to Ireland, essentially on two bases within the meaning of Reg. 16(3) of the Regulations. 

8. First, the father contends in his affidavit that at least the oldest child objects to returning to Ireland within the meaning of subparagraph (c) of Reg. 16(3).  Second, the father contends that, within the meaning of subparagraph (b) of Reg. 16(3), there is a grave risk that the return of the children under the Convention would expose them to physical or psychological harm or otherwise place them in an intolerable situation.  As to the first of these exceptions, namely, the objection exception, it was contended on behalf of the father that a Regulation 26 Report be obtained with respect to the oldest child J. 

9. As already noted, J is now eight years of age, soon to turn nine years of age.  The application for a Regulation 26 Report was opposed by the applicant on the basis that it could not be said that J has attained an age or a degree of maturity at which it would be appropriate to take account of her views.  I accept that submission.  There is no material before me to persuade me that J would have a level of maturity to express views on any objection she might have that could distinguish between what is involved in a return order to the country of Ireland as opposed to the return to care or a particular situation of care. 

10. No authority was provided to me on behalf of the father to persuade me that a child as young as eight, almost nine, is likely or probably has the level of maturity described in the Regulation for the Court to take into account that child’s views.  Inevitably, an order for a Regulation 26 Report would significantly delay the hearing and determination of the trial of this matter. 

11. It seems to me that, for these reasons, it gives effect to the objects of the Convention and the Regulations to have the matter set down for trial as soon as possible and, in this case, that is a trial on 3 February 2015.  The interim orders proposed by the applicant otherwise are not opposed by the respondent and, with the insertion of the dates I have referred to during the course of exchanges this morning, I now make those orders.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 9 January 2015.

Associate: 

Date:  9 January 2015