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

[2014] FamCA 621

FAMILY COURT OF AUSTRALIA

DIRECTOR-GENERAL, DEPARTMENT OF COMMUNITIES, CHILD SAFETY AND DISABILITY SERVICES & SHIREE	[2014] FamCA 621
FAMILY LAW – CHILD ABDUCTION – Hague Convention – Where the Respondent mother consents 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:	Director-General, Department of Communities, Child Safety and Disability Services

RESPONDENT: Ms Shiree

FILE NUMBER: BRC 6301 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: In person

Orders

It is ordered that:

1. UNTIL FURTHER ORDER the Mother Ms Shiree born … 1992, be restrained and an injunction issue, restraining her and any other person on her behalf from removing, or attempting to remove the said children, B (female) born … 2009 and C (female) born … 2011, from the Commonwealth of Australia.

1. UNTIL FURTHER ORDER the Mother Ms Shiree born … 1992, 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, D Street, E Town, 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 Shiree born … 1992, and the said children, B (female) born … 2009 and C (female) born … 2011, 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. UNTIL FURTHER ORDER the Mother Ms Shiree born … 1992, surrender forthwith to an officer from the Department of Communities, Child Safety and Disability Services all current passports relating to herself and the said children, B born … 2009 and C born … 2011.

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

2. The Mother file and serve a Notice of Address for service by 8 August 2014.

1. The Mother file and serve a Form 2A Answer and Cross Application on or before 4.00 pm on 28 August 2014.

2. The Mother file and serve affidavits of evidence in chief to be relied upon at the hearing of the Application on or before 4.00 pm on 28 August 2014.

3. The Applicant file and serve any affidavits in reply on which the Applicant proposes to rely on or before 4.00 pm on 11 September 2014.

4. The proceedings be listed for hearing before the Honourable Justice Kent at 2.15 pm on 22 September 2014, at the Family Court, Brisbane Registry.

5. 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 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 & Shiree 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 6301 of 2014

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

Applicant

And

Ms Shiree

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. By Application in Form 2 filed on 17 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, B born in 2009 is currently four years of age, and the other child, C born in 2011, who is currently two years of age.

2. The requesting applicant under the Convention is the children’s father, Mr F (“the father”), aged 21, born in 1993, who is a Samoan national currently residing in City G, New Zealand.  The respondent to the Application is Ms Shiree (“the mother”), aged 22 born in 1992, a New Zealand national of Maori heritage, currently residing in Queensland.  Pursuant to the Form 2 Application and material filed in support of it, 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 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; from changing their usual day to day residence; placing the name of the mother and the children on the Family Law All Ports Watch List, and for the mother and the children’s passports to be surrendered to the Department of Communities, Child Safety and Disability Services (“the Department”).

4. The mother appears, representing herself on this Application today, and is assisted by her uncle, Mr H.  Stated briefly, the parents had a relationship in or around 2008 and finally separated in September 2013.  Both of the children referred to were born in New Zealand.  On the father’s version, following separation the children lived predominantly with the mother but had – he deposes – regular contact with him either at his home located nearby to the mother or at the mother’s home.  The father’s evidence is that the parents shared the care of the children, although there were no formal arrangements put into place.

5. The father suggests that he looked after the children approximately three times each week at his own residence, as well as spending regular time with the children in the mother’s home to provide care when the mother needed a break.  On the father’s version, this shared care arrangement continued until 9 January of this year when the mother travelled with the children to Australia.  On his version, that was to be a temporary holiday and he did not consent.  Indeed, on the father’s version, he did not agree to the children travelling to Australia at all but says the mother insisted it would be for a holiday only.

6. The father provides evidence that since the mother travelled with the children to Australia on 9 January 2014, he has not had any contact with the children and says that the last time he communicated with them was when he attended at the City G International Airport on 9 January 2014 upon the departure of the children and the mother.  The mother, as I have noted, consents to interim orders being made until the matter can be heard, and I have made directions for that to occur with a final hearing of the Application set down for 22 September 2014 at 2.15 pm. 

7. I am satisfied on the contents of the Form 2 and material filed in support of it that interim orders ought to be made, and as noted, they are consented to.  I am satisfied that the mother has had some opportunity to obtain some legal advice, albeit that she is yet to be granted legal aid and to obtain more fulsome advice.  On that basis, I make the orders set out in the draft paragraphs 1 to 13 inclusive and otherwise – 1 to 13 inclusive.  Those orders are now initialled by me and placed with the file. 

I certify that the preceding seven (7) 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