DIRECTOR-GENERAL, DEPARTMENT OF COMMUNITIES, CHILD SAFETY AND DISABILITY SERVICES & TOREITI - [2013] FamCA 352

FAMILY COURT OF AUSTRALIA

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

[2013] FamCA 352

FAMILY LAW – CHILD ABDUCTION – Where the child was habitually resident in New Zealand – Where the child has been wrongfully removed from New Zealand by the Mother – Where the Father had consented or acquiesced to the child remaining in Australia – Where proceedings have been on foot in New Zealand since 2010 regarding the parenting arrangements of the subject child and her siblings – Whether the Court should exercise its residual discretion in making a return order – Where the welfare of the child is properly to be taken into consideration in exercising the discretion – Where it is appropriate for the outstanding issues concerning parenting and care arrangements to be resolved in the courts of New Zealand

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

De L v Director-General New South Wales Department of Community Services (1996) 187 CLR 640
Richards v Director-General, Department of Child Safety [2007] FamCA 65
W v W (Child Abduction: Acquiescence) [1993] 2 FLR 211

APPLICANT:

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

RESPONDENT:

Ms Toreiti (aka Ms Murray)

FILE NUMBER:

BRC

1577

2013

DATE DELIVERED:

22 May 2013

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Kent J

HEARING DATE:

13 May 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Mr Selfridge
SOLICITOR FOR THE APPLICANT:	Crown Law

FOR THE RESPONDENT:

In person

Orders

IT IS ORDERED THAT

The female child, E born … May 2000, be returned to the country of New Zealand and for the purposes of giving effect to this Order:
(a)the said child leave the Commonwealth of Australia on or before 22 June 2013;
(b)pending the child returning to New Zealand, the respondent Mother, Ms Toreiti (aka Ms Murray), continue to be restrained from removing or attempting to remove or causing or permitting the removal of the child, from the Commonwealth of Australia;
(c)pending the return of the child to New Zealand, the respondent Mother continue to be restrained from changing the residence of the child from the premises where she and the child are currently residing namely, … B Street, Suburb C, QLD 4…;
(d)subject to sub-paragraph (e) below, the Commissioner of the Australian Federal Police and all Federal Agents of the Australian Federal Police retain the names of the respondent Mother, Ms Toreiti (aka Ms Murray) born …, and the female child, E born … May 2000, on the All Ports Watch Alert System at all international departure points in Australia;
(e)the female child, E born … May 2000, and the respondent Mother, Ms Toreiti (aka Ms Murray) born …, 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: DIRECTOR-GENERAL, DEPARTMENT OF COMMUNITIES, CHILD SAFETY AND DISABILITY SERVICES & TOREITI [2013] FamCA 352
Case: [2013] FamCA 352
Decision Date: 22 May 2013

CaseChat Overview and Summary

The parties before the court were the Director-General, Department of Communities, Child Safety and Disability Services (the Applicant) and Ms Toreiti, also known as Ms Murray (the Respondent Mother), concerning the welfare of a female child, E. The dispute centred on the return of the child to New Zealand. The matter was heard by Kent J of the Family Court of Australia.

The primary legal issue before the court was whether the child, E, should be returned to New Zealand. This involved determining the appropriate orders to facilitate such a return, including restrictions on the Respondent Mother's actions and the involvement of various government agencies.

Kent J ordered that the child, E, be returned to New Zealand on or before 22 June 2013. The court imposed several conditions to give effect to this order, including restraining the Respondent Mother from removing the child from Australia or changing her residence. The Commissioner of the Australian Federal Police was directed to retain the names of the Respondent Mother and child on the All Ports Watch Alert System, with provisions for their removal upon confirmation of travel arrangements. The Marshal of the Family Court, the Australian Federal Police, and State and Territory police forces were empowered to take necessary steps to enforce the orders. The court also ordered that an officer of the Department of Communities, Child Safety & Disability Services release the child's passports for the return journey and the Respondent Mother's passport upon request. Furthermore, the Respondent Mother was ordered to pay all expenses associated with the child's return, with provisions for reimbursement to the Applicant if she failed to do so. Liberty to apply was granted to the Applicant for further necessary orders, and all other applications were dismissed.

Orders

Orders of the court

IT IS ORDERED THAT

The female child, E born … May 2000, be returned to the country of New Zealand and for the purposes of giving effect to this Order:

(a) the said child leave the Commonwealth of Australia on or before 22 June 2013;

(b) pending the child returning to New Zealand, the respondent Mother, Ms Toreiti (aka Ms Murray), continue to be restrained from removing or attempting to remove or causing or permitting the removal of the child, from the Commonwealth of Australia;

(c) pending the return of the child to New Zealand, the respondent Mother continue to be restrained from changing the residence of the child from the premises where she and the child are currently residing namely, … B Street, Suburb C, QLD 4…;

(d) subject to sub-paragraph (e) below, the Commissioner of the Australian Federal Police and all Federal Agents of the Australian Federal Police retain the names of the respondent Mother, Ms Toreiti (aka Ms Murray) born …, and the female child, E born … May 2000, on the All Ports Watch Alert System at all international departure points in Australia;

(e) the female child, E born … May 2000, and the respondent Mother, Ms Toreiti (aka Ms Murray) born …, 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;

(f) 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;

(g) to facilitate the return of the child to New Zealand, an officer of the Department of Communities, Child Safety & Disability Services be at liberty to release all current passports relating to the child for the purposes of the child's return to New Zealand; and release the respondent Mother’s passport to her or her nominee upon request;

(h) the respondent Mother 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 in the event the respondent Mother fails or refuses to pay these expenses; the respondent Mother pay to the Applicant the necessary expenses incurred by or on behalf of the Applicant and Mr Vakaoti, in returning the child to New Zealand, within two business days of the Applicant making a written demand for reimbursement of the said expenses;

(i) liberty to apply be granted to the Applicant to seek any further Orders necessary to allow her or officers of the Department of Communities, Child Safety and Disability Services to make such arrangements as are necessary to facilitate and ensure the return of the child in accordance with this Order.

There be liberty to apply.

All other Applications be dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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