Re Sophie

[2008] NSWSC 1239

CITATION:	Director-General, Department of Community Services; Re Sophie [2008] NSWSC 1239
HEARING DATE(S):	30 October 08
JURISDICTION:	Equity Division Duty List
JUDGMENT OF:	Brereton J
EX TEMPORE JUDGMENT DATE:	30 October 2008
DECISION:	Orders restraining defendant from leaving Australia set aside. Plaintiff directed to amend summons joining mother and child as second and third defendants.
CATCHWORDS:	CHILDREN – INJUNCTIONS – extra-territoriality – parens patriae jurisdiction – application to amend summons claiming mandatory injunction ordering father to return to Australia – where Department of Community Services has parental responsibility for child – where father ordered by Children’s Court not to have contact with child – where mother and daughter have left Australia and not returned – where father has also left Australia – where father ordered by this Court not to leave Australia on day of his departure, but not notified in time – whether order prohibiting father’s leaving of Australia should be set aside – whether father should be ordered to return to Australia – whether child should be ordered back to Australia
LEGISLATION CITED:	(NSW) Children and Young Persons (Care and Protection) Act 1998, s 29
CATEGORY:	Procedural and other rulings
CASES CITED:	Ainstis v Ainstis [1999] FamCA 841; (1999) 152 FLR 447; (1999) 26 Fam LR 548 Director-General of Department of Community Services; Re Sophie [2008] NSWCA 250 McM v C No 2 [1980] 1 NSWLR 27
TEXTS CITED:	TREATIES: Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children [2003] ATS 19
PARTIES:	Director-General, Department of Community Services (plaintiff) Names of defendants suppressed
FILE NUMBER(S):	SC 5419/08
COUNSEL:	Mr A J Allen (plaintiff) Mr P J Castley (defendant)
SOLICITORS:	Crown Solicitor (plaintiff) Bottrill van Kempen Solicitors Attorneys (defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
DUTY LIST

BRERETON J

Thursday, 30 October 2008

5419/08 Director-General Department of Community Services; Re Sophie

JUDGMENT (ex tempore)

1 HIS HONOUR: Sophie is a seven year old child for whom the Minister for Community Services has parental responsibility pursuant to orders made by the Children's Court on 4 August 2007, which were reinstated on 15 October 2008 as a result of a successful application for certiorari by the present plaintiff Director-General [Director-General of Department of Community Services; Re Sophie [2008] NSWCA 250], quashing orders of the District Court which had, on 30 May 2008, allowed an appeal, by the father and the mother, from the orders of the Children's Court. Under the orders of the Children's Court, the mother has parental responsibility for the religious upbringing and cultural heritage of the child, and the Minister had placed the child in the care of the mother. The orders of the Children's Court, which also prohibit the father from attempting or having any contact with the child by any means, or approaching her, were made on the basis that there was an unacceptable risk that Sophie would be sexually abused if she had contact with the father.

2 At a time when the Children's Court orders had been set aside by the District Court and before they were restored as a result of the appeal to the Court of Appeal, the mother took the child to Japan, ostensibly for a period intended to be about five weeks from 25 August to 30 September 2008. For that purpose, she procured the release of the child's passports, which were held by the Department. The father's solicitor had indicated to the Department that he held the father's passport in safekeeping at the father's request and had been instructed to do so for the duration of the child and mother's travel to Japan.

3 The Court of Appeal judgment was given on 15 October 2008, following a hearing on 2 October 2008. The mother and the child did not return from Japan on 1 October 2008; have not since returned; and attempts to elicit from her solicitors an indication when she intended to return resulted in the following response on 29 October 2008:

I have received an email from [the mother] today ... she has still not said when she and [Sophie] intend to return to Australia. I will send another email to my client today and seek instructions when she and [Sophie] intend to return from Japan.

4 On 15 October 2008, the Department caused South Australian police to ascertain whether the father was still living at his South Australian address and those inquiries confirmed on 17 October that he remained there. On 16 October, the Department sought an undertaking from the father that pending the rehearing of the District Court appeal, which had been remitted to that Court by the Court of Appeal, he would not leave or attempt to leave Australia, and would give his solicitor irrevocable authority to hold and retain his passport.

5 On 28 October, a PACE alert for the father was triggered when he passed through Customs at Brisbane Airport boarding China Airlines flight CI54 for Taipei, due to depart at 10.45am (Brisbane time; 11.45 EDST) that morning. An officer of the Department telephoned the father's solicitor and informed him that the alert had been triggered. The father's solicitor said that he was in the process of sending a letter explaining the situation. That letter was sent on 28 October 2008 at 11.09am conveying an undertaking that the father would not have or attempt to have contact with his daughter pending resolution of the matter remitted to the District Court but indicating that he intended to live and work in China "for a time". The letter purported to give notice that the father had called for his passport and that the solicitor had taken steps to return it; in truth, it did not give notice of anything that was to happen, but advised of things that had already happened. The letter further indicated that the father intended to depart for China "shortly on 30 October". It reiterated that he intended to abide by his undertaking not to have or attempt to have contact with the child.

6 At about 11.45am EDST, on the Department's application, White J made an order that the father be restrained from leaving Australia on flight CI54 from Brisbane to Taipei at 10.45am Brisbane time, and that until further order he be restrained from attempting to leave Australia. The father's solicitor's facsimile letter of 28 October 2008 was not disclosed to the Court when the ex parte order was sought. Police at Brisbane were notified of the order shortly afterwards, but the flight, with the father on it, had already departed.

7 Today, the Department seeks leave to amend the summons to claim primarily a mandatory injunction compelling the father to return to Australia within 48 hours. The father, who appears by counsel, opposes that order and seeks, in addition, that the order already made be discharged for non-disclosure of his solicitor's letter of 28 October. As I propose to deal with the issues which arise more extensively next week, I do not propose to descend to much detail in the manner in which I dispose of the present application.

8 So far as concerns the non-disclosure of the father’s solicitor’s letter on the ex parte application, I readily accept that, in the urgent circumstances in which the Department was compelled to approach the Court on 28 October, it would have been very easy, innocently, to overlook a significant matter. On the other hand, the letter was a highly material matter to be disclosed in that context. But I do not think that disclosure of the letter would have made the slightest difference to the outcome, since the inconsistency between the proposed departure date of 30 October referred to in the letter, and the circumstance that the departure was in fact taking place on 28 October when the Court was approached, would, if anything, have heightened rather than reduced concern as to what was transpiring.

9 It is more to the point that the order was spent before it was made, having been made ex parte and the father not being notified of it before departing from Australia. I have considered whether the better course is to continue it, or set it aside. It seems to me that having regard to the combined effect of the non-disclosure and the circumstance that it was, in effect, spent before it was made, the better course is that it be set aside, without prejudice to the plaintiff's entitlement to apply for any similar further order in due course.

10 I am not prepared at this stage, although further argument might convince me otherwise, to grant a mandatory injunction compelling the father to return to Australia. The prime reason for this is that I am inclined, at this stage, to think that the focus of the proceedings is misdirected, and that the real issue should be the return to Australia of the child, being a child in the parental responsibility of the Minister. The Court has extra-territorial jurisdiction in relation to proceedings for relief relating to the custody, guardianship, protection or welfare of a minor whether or not the minor is in New South Wales, if the Court has, apart from service, jurisdiction to grant that relief [UCPR, Schedule 6, clause (v)]. As Sophie is a child in the parental responsibility of the Minister, this Court’s parens patriae jurisdiction supports orders concerning her welfare. Likewise, the circumstance that she was domiciled and ordinarily resident in New South Wales until her temporary visit to Japan would support this Court's jurisdiction to make such an order [see McM v C (No 2) [1980] 1 NSWLR 27]. The circumstance that Japan is not a party to the Child Protection Convention (Hague, 1996), while meaning that the facility of that Convention will not be available to procure the return of the child, does not mean that this Court should not make such an order, nor that such order cannot be enforced by one means or another in Japan; indeed, such orders were often made prior to the enactment of the Hague Convention.

11 The father is bound by the orders of the Children's Court that he not have contact, or attempt to have contact, with Sophie. By his counsel he proffers to this Court an undertaking in similar terms.

12 If there were before me admissible evidence that founded an unacceptable risk that the husband was, in reality, en route to Japan for the purposes of marrying up with the mother and the child, that might well found an injunction of the type which the Department seeks. But the only evidence which might support such an inference that is tendered is that contained in paragraphs 12 and 24 of the plaintiff's solicitor's affidavit. As presently advised, although again I might well come to a different view after further consideration and argument, it seems to me that (NSW) Children and Young Persons (Care and Protection) Act 1998, s 29(1)(d), renders that evidence inadmissible. I do not think that I can take the course of receiving it on this application, since to do so would effectively deprive it of the privilege or protection to which it is prima facie entitled.

13 It therefore seems to me that the appropriate way forward is for these proceedings to be reconstituted and amended, so as to bring before the Court at an early date an application for the return of the child to Australia and the parental responsibility of the Minister. That is not to say that I might not be persuaded by further argument that it is appropriate to make some orders against the father also, but at this stage the evidence does not permit me to be satisfied that, in circumstances where he is already bound by orders not to approach the child, his freedom of movement should be further restrained – a course which is to be taken only in rather exceptional circumstances, having regard to the rights of freedom of movement recognised by international law [see Ainstis v Ainstis [1999] FamCA 841; (1999) 152 FLR 447; (1999) 26 Fam LR 548 (Mullane J)].

14 Accordingly, at this stage, I shall make the following orders:

1. Note that the defendant by his counsel undertakes to the Court that until further order he will not have or attempt to have contact with the child.

2. Note the undertaking of the father’s solicitor to file a Notice of Appearance by close of business on 31 October 2008.

3. Set aside orders 1 and 2 made and entered on 28 October 2008.

4. Direct that by noon on 31 October 2008 the plaintiff file and serve an amended Summons, joining as second defendant the mother KW, and as third defendant the separate representative of the child PD, and claiming in addition to such other relief as the plaintiff is minded to seek, an order that the child be a ward of this Court and allocation of parental responsibility to the Minister, an order in the nature of a recovery order, and such ancillary orders as may be considered appropriate.

5. Direct that the amended Summons be returnable before me at 10:00am on Monday, 3 November 2008.

6. Abridge time for service of the amended Summons to noon on 31 October 2008.

7. Direct that notice of the Summons as amended may be served on the second defendant by facsimile transmission of a sealed copy of the Summons and this order to Belinda Eyers and Associates, Solicitors, on facsimile number 6685 1344 for the attention of Ms Belinda Eyers, and on the third defendant by transmission of a facsimile of a sealed copy of the Summons and this order to him at Paul Darnell and Associates on facsimile number 6628 3898.

8. Direct that notice of the amended Summons may be served on the first defendant by transmission of a facsimile of the sealed Summons and this order to Adam van Kempen on facsimile number 6680 8511.

9. Direct that pursuant to Uniform Civil Procedure Rules , r 33.13(3), the Registrar request the District Court of New South Wales at Sydney to send to the Registrar of this Court the documents produced on subpoena in proceedings 1606/08 in the District Court by Professor E, if practicable by 3 Nov 2008, and upon receiving those documents from the District Court produce them before me that day without affording prior access to any other party.

10. Adjourn proceedings to Monday, 3 November 2008 at 10:00am before me.

11. Direct that these orders be entered forthwith.

12. Reserve liberty to apply by arrangement with my Associate in event of any difficulty arising in the implementation of these orders.

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