Director General, Department of Family and Community Services and Cantwell

[2012] FamCA 991

FAMILY COURT OF AUSTRALIA

DIRECTOR GENERAL, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES AND CANTWELL [2012] FamCA 991

FAMILY LAW – CHILDREN – Hague Abduction Convention – Ex Parte Injunctions

APPLICANT: Director General, Department Of Family And Community Services

RESPONDENT: Ms Cantwell

FILE NUMBER: SYC 6703 of 2012

DATE DELIVERED: 14 November 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ryan J

HEARING DATE: 14 November 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Pereira

FOR THE RESPONDENT: No appearance for or on behalf of the respondent

Orders

1. That until further order the respondent, Ms Cantwell … October 1979 their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the said children B (female) born … November 2009 and C (female) born … November 2009 from the Commonwealth of Australia and it is requested that the Australian Federal Police give effect to this order.

1. That until further order, the respondent, Ms Cantwell born … October 1979 be restrained from leaving the Commonwealth of Australia and that the Australian Federal Police give effect to this order.

1. That until further order, the names of the respondent, Ms Cantwell born … October 1979 and the children B (female) born … November 2009 and C (female) born … November 2009  be placed upon the Watch List in force at all points of arrival and departure in the Commonwealth of Australia.

1. That unless the Court otherwise orders the names of the children and the respondent on the PASS Alert system shall lapse 12 months from the date the names were placed on the PASS Alert system.

1. That until further order, the respondent, Ms Cantwell born … October 1979 surrenders forthwith to the Registrar of the Family Court of Australia, all current passports and air tickets relating to herself and the said children B (female) born … November 2009 and C (female) born … November 2009.

1. That the respondent, Ms Cantwell born … October 1979 be served with sealed copies of the application and the annexures and of these orders no later than 12.00 noon on 20 November 2012 and that the application be returnable before this Court at 9.45 am on 23 November 2012.

1. That sealed copies of this Application and these orders be served upon the Commissioner, Australian Federal Police.

1. That the parties are at liberty to apply herein on twenty-four hours notice.

1. The application filed by the Director-General, Department of Family & Community Services is listed for hearing before the Honourable Justice Stevenson at 10.00 am on 21 December 2012.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Director General, Department of Family and Community Services & Cantwell 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 SYDNEY

FILE NUMBER: SYC 6703 of 2012

Director General, Department Of Family And Community Services

Applicant

And

Ms Cantwell

Respondent

REASONS FOR JUDGMENT

1. These reasons are delivered orally.

2. This is an application by the Department of Family and Community Services, New South Wales as the responsible Central Authority in this State in relation to the Hague Convention on the Civil Aspects of International Child Abduction (“Abduction Convention”).  The applicant commenced these proceedings by an application filed 9 November 2012.  The gravamen of the application is that it is alleged that the respondent has retained two children in Australia, namely B born in November 2009 and C born the same day.

3. It is contended by the applicant that the children’s father, Mr Cantwell, gave his consent to the respondent’s request that she visit her family in Australia for a confined period which expired around Christmas 2011.  It is said that the respondent’s failure to return the children to the United Kingdom in or around Christmas 2011 constitutes a wrongful retention by her of the children in Australia.  In support of the application the applicant sets out evidence which, if accepted, is capable of establishing each of the elements that must be proved before a return order could be made.

4. It is also alleged that the father has offered mediation through Reunite International and has taken a series of steps designed to secure the children’s voluntary return to the United Kingdom which, on the face of the evidence before the Court today, is where they were habitually resident immediately prior to their retention.  The gravamen of the submissions by the applicant is that the children’s presence in the jurisdiction needs to be secured pending disposition of the application.  I agree.  I also agree that in order to ensure that outcome it is necessary to order that the children’s passports are delivered to the Court, their names are placed on the PASS alert system and a suite of orders as proposed by the applicant are made to ensure that the respondent cannot remove them from Australia before these proceedings are finalised.

5. For these reasons orders will be made as sought in paragraphs 1 to 5 of the minute of order presented today. 

6. The matter will be before this Court at 9.45 am on 23 November 2012.  The application filed by the Director General, Department of Family and Community Services is listed for hearing before the Honourable Justice Stevenson at 10.00 am on 21 December 2012. 

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 14 November 2012.

Associate:     

Date:              29 November 2012