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

[2014] FamCA 809

FAMILY COURT OF AUSTRALIA

DIRECTOR-GENERAL, DEPARTMENT OF COMMUNITIES, CHILD SAFETY AND DISABILITY SERVICES & TAARE [2014] FamCA 809

FAMILY LAW – CHILD ABDUCTION – Hague Convention – Interim Orders – Child’s name 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: Mr Taare

FILE NUMBER: BRC 8387 of 2014

DATE DELIVERED: 22 September 2014

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 22 September 2014

REPRESENTATION

SOLICITOR FOR THE APPLICANT:	Crown Law
FOR THE RESPONDENT:	No appearance

Orders

It is ordered until further order that:

1. The Respondent Father, MR TAARE born … 1980, be restrained and an injunction issue, restraining him and any other person from removing, or attempting to remove the child, Y born … 2000 (male) from the Commonwealth of Australia.

1. The Respondent Father, MR TAARE born … 1980, be restrained and an injunction issue, 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, … M Street, Suburb B in the State of 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. The Commissioner of the Australian Federal Police place the names of the Respondent Father, MR TAARE born … 1980 and the child, Y born … 2000 (male), 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 Respondent Father and the child’s names from the Family Law Watch List.

1. The Respondent Father, MR TAARE born … 1980, surrender forthwith to the Registrar of this Honourable Court all current passports relating to himself and the child, Y born … 2000.

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

1. The Respondent Father file and serve a Form 2A Answer and Cross Application on or before 4.00 pm on 16 October 2014.

2. The Respondent Father 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 16 October 2014.

3. The Applicant file and serve any affidavits in reply on which the Applicant proposes to rely upon on or before 4.00 pm on 21 November 2014.

4. The proceedings be listed for hearing before the Honourable Justice Kent at 10.00 am on 5 December 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 child’s name 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 & Taare 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 8387 of 2014

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

Applicant

And

Mr Taare

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. By Application in Form 2, filed on 12 September 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 child Y, born in 2000, who is currently 14 years of age (“the child”).

2. The requesting applicant under the Convention is the child’s mother, Ms C (“the mother”), a New Zealand citizen.  The respondent to the application is Mr Taare (“the father”), a New Zealand national who was served with the proceedings on 18 September 2014, according to the affidavit of Mr W.  

3. The mother has rights of custody in respect of the child pursuant to consent orders made by the New Zealand Family Court on 4 April 2011. 

4. In summary, the following orders sought on this Application are that the father return the child to New Zealand and pay all costs associated.  Further, interim orders are now sought which would restrain the father from moving the child from Australia and changing the child’s usual day to day residence, and placing the names of the father and the child on the Family Law watchlist and orders for the surrender of passports to the Department of Communities, Child Safety and Disability Services.

5. Briefly stated by reference to the Form 2, the parents commenced cohabitation in 1997, married in October 2000, separated in 2005, and their marriage was dissolved in 2009.  There are four children of the marriage aged between 16 and 12 years, but only one of those children, namely Y, who is now 14 years of age is the subject of these proceedings.  The other three children are still residing in New Zealand with the paternal grandmother.

6. Pursuant to the mother’s affidavit attached to the Form 2 Application, following separation all of the children resided with the mother, and the father ceased having contact with the mother and the children.  The mother deposes that it was her understanding that the father had relocated to Brisbane and she had no contact with him until early 2009.  The children continued to reside with the mother from separation in 2005 until 2008 when they began living with the maternal grandparents.  In 2011 the children began residing with the paternal grandmother.

7. On 4 April 2011 the parents, maternal grandparents and paternal grandmother entered into final parenting orders by consent which provided for the paternal grandmother to be made an additional guardian of the children and to have day to day care of the four children, and for the children to spend time with the mother and maternal grandparents at various times with each child having a somewhat different regime.

8. With respect to the child the subject of these proceedings, I note that the mother and maternal grandparents were to spend time with him each alternate weekend, as well as time during the school holidays and on special occasions.  I note that no orders were made for time between the children and the father.  Relevantly, in the orders headed “Overseas Travel”, it reads that the order preventing the removal of the children from New Zealand, dated 10 March 2005, be discharged but various conditions listed therein continued to apply to overseas travel.  In particular, it is recorded:

   It is agreed that the children’s habitual place of residence is New Zealand.

9. The mother deposes that she last had contact with the child on Mother’s Day on 11 May 2014.  Several days later the mother was informed by her oldest child that the child was in Australia.  The mother contacted the paternal grandmother and was informed that the child had been sent to Australia to spend time with the father, but would be returning to New Zealand on 30 June 2014.  On 8 July 2014 the mother attended the paternal grandmother’s home to collect the children for a funeral and was informed by the paternal grandmother that the child had been enrolled in school in Australia and would not be returning to New Zealand.

10. Subsequently the mother learned of some intention of the paternal grandmother to send the other three children to Australia.  The mother then brought an application in the Family Court New Zealand on 2 July 2014 to prevent the other children from being removed from New Zealand without her consent.

11. The paternal grandmother has responded to that Application and it seems she seeks permission of the New Zealand court to relocate to Australia with the three children. 

12. It is the mother’s evidence that she was not consulted in relation to the removal of the subject child from New Zealand on 6 May 2014, as would be required under the terms of the parenting order to which I have referred, dated 4 April 2011.  Thus, on the mother’s case, she has not consented to the child’s removal from New Zealand and her alternate case is that, to the extent that it may be implied that any agreement arose between the mother and the paternal grandmother, the subject child was to be returned to New Zealand on 30 June 2014, and on the basis that the child has not been returned, the mother contends that the child has been wrongfully retained in Australia from that date.

13. I am satisfied that the respondent has been served with the Application but it seems has made no contact with the applicant since service, albeit that that service was very recent.  I am satisfied on the material relied upon by the applicant that there is at least a prima facie case and, on that basis, interim orders as sought should be made. 

14. It is noted that the child the subject of these proceedings is currently 14 years of age, and there is a liberty to apply provision included in the orders in the event that it is part of the respondent’s contention that a Regulation 26 report ought be prepared for the purposes of the trial of this Application.  I have otherwise added to the draft orders the dates discussed and they will be included in the order as it issues from the Court. 

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on Monday, 22 September 2014.

Associate: 

Date:  22 September 2014