DIRECTOR-GENERAL, DEPARTMENT OF FAMILY & COMMUNITY SERVICES & CHYOU

[2012] FamCA 962

FAMILY COURT OF AUSTRALIA

DIRECTOR-GENERAL, DEPARTMENT OF FAMILY & COMMUNITY SERVICES & CHYOU [2012] FamCA 962

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

Family Law Act 1975 (Cth)

APPLICANT: Director-General, Department Of Family & Community Services

RESPONDENT: Ms Chyou

FILE NUMBER: SYC 6423 of 2012

DATE DELIVERED: 29 October 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ryan J

HEARING DATE: 29 October 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Pereira

FOR THE RESPONDENT: No appearance

Orders

1. That until further order the respondent mother, Ms Chyou born …1974, her servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the said child Y (female) born …2008 from the Commonwealth of Australia and it is requested that the Australian Federal Police give effect to this order.

2. That until further order, the respondent mother, Ms Chyou born …1974 be restrained from leaving the Commonwealth of Australia and that the Australian Federal Police give effect to this order.

3. That until further order, the names of the respondent mother, Ms Chyou born …1974 and the child Y (female) born …2008 be placed upon the Watch List in force at all points of arrival and departure in the Commonwealth of Australia.

4. That unless the Court otherwise orders the names of the child and the respondent on the Airport Watchlist shall lapse 12 months from the date the names were placed on the Airport Watchlist Alert system.

5. That until further order, the respondent Mother, Ms Chyou born …1974 surrenders forthwith to the Registrar of the Family Court of Australia, all current passports and air tickets relating to herself and the said child Y (female) born …2008.

6. That the respondent mother, Ms Chyou born …1974 be served with sealed copies of the application and the annexures and of these orders no later than 1 November 2012 and that the application be returnable before this Court on 6 November 2012 at 10.00am.

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

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

9. The application filed by the Director-General, Department of Family & Community Services is listed for final hearing before Ryan J at 10.00 am on 4 December 2012.

10. The Court notes that the child’s date of birth is wrongly stated in the Application and that the correct date of birth is …2008.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Director-General, Department of Community Services & Chyou  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 6423 of 2012

Director-General, Department Of Family & Community Services

Applicant

And

Ms Chyou

Respondent

REASONS FOR JUDGMENT

1. These reasons are delivered orally.

2. Before the Court is an application by the Department of Family and Community Services, as the Central Authority in this State, for the implementation of the Hague Convention on the Civil Aspects of International Child Abduction (“Abduction Convention”).  In short, it is alleged that the respondent, Ms Chyou, has wrongfully removed the child, Y, born in 2008, from Hong Kong, which it is said is her place of habitual residence. 

3. In support of the application, the evidence, if accepted, would demonstrate satisfaction of all of the elements which the applicant must persuade the Court exist before a return order could be made.

4. In addition, there is evidence provided by the father in the applicant’s case, which raises concern about how the respondent might react were she to learn about the Abduction Convention application.  In short, there is evidence which suggests there is an appreciable risk that the child may not remain in the jurisdiction if the mother was made aware of this application, but no orders made to secure the child’s presence in Australia. 

5. The case for the ex parte injunctions is strong and orders as sought by the Central Authority, ex parte, will be made, in terms of the minute of order, which I make Exhibit “A”.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 29 October 2012.

Associate: 

Date:             12 November 2012