SAN and KMA and Anor

[2007] FamCA 775

FAMILY COURT OF AUSTRALIA

SAN & KMA AND ANOR [2007] FamCA 775

FAMILY LAW - CHILDREN – Interim parenting application – where New Zealand courts order the return to Australia of two young children – children returned to Australia pursuant to warrant
FAMILY LAW - JURISDICTION – where upon children’s return NSW Department of Community Services removes children from father and paternal grandmother’s care – if children in the care of a person pursuant to a child welfare order by s 69ZK this court lacks jurisdiction unless statutory exceptions established – exceptions do not apply – where Department of Community Services acted without requisite authority – no jurisdictional impediment - where mother and children’s whereabouts unknown – interim parenting orders made in favour of paternal grandmother and recovery order issued

Family Law Act 1975 (Cth) ss 62B, 65DA, 67Q, 69E, 69ZK
r 8.05 
Children and Young Persons (Care and Protection) Act 1998 (NSW) s 43

APPLICANT FATHER: SAN

FIRST RESPONDENT MOTHER: KMA

SECOND RESPONDENT PATERNAL

GRANDMOTHER:

MRS N

FILE NUMBER: (P)NCC 1142 of 2007

DATE DELIVERED: 2 AUGUST 2007

PLACE DELIVERED: NEWCASTLE

JUDGMENT OF: The Hon. Justice Ryan

HEARING DATE: 31 July 2007

REPRESENTATION

SOLICITOR FOR APPLICANT: Mr David Winder

FIRST RESPONDENT: No appearance

SECOND RESPONDENT: In Person

Orders

1. I give Mrs N leave to make an oral application for orders that “the children” [E] born August 2002 and [N] born August 2004 live with her pending further order.

2. That in the first instance Mrs N has leave to proceed with the above application in so far as it concerns the mother.

3. That pending further order that the children referred to in order 1 above shall continuously spend time with Mrs N.

4. That pursuant to Section 67Q of the Family Law Act 1975 a recovery order issue authorising and directing the Marshall, all Officers of the Australian Federal Police and all officers of the Police Force of all States and Territories of the Commonwealth of Australia to take possession of and deliver the said children to the paternal grandmother Mrs N.

5. That Mrs N is restrained from allowing the said children to have contact other than telephone communication with their father Mr N.

6. In the event that [the father] attempts to communicate with or spend time with the children beyond that provided for in the above order Mrs N shall forthwith notify the New South Wales Police.

7. That the parties have liberty to apply on 30 minutes notice to the Court and the other parties.

8. That the mother forthwith files a Notice of Address for Service in accordance with the Family Law Rules.

9. That the father cause sealed copies of these orders to be served upon Ms Alexis Hart of Parnell Law, Parnell, Auckland, New Zealand immediately. 

10. The Court REQUESTS that Ms Hart immediately provides notice to the mother of these orders. 

11. Upon giving the mother notice of these orders Ms Hart shall file and serve an affidavit in this Court confirming that the mother has notice of the orders and proceedings.

12. That the father’s solicitor immediately give oral notice to the maternal grandmother of these orders including the Court’s request that in the event she hears from Ms A the maternal grandmother informs her that these orders have been made.

13. The proceedings are adjourned to 12.00 noon Thursday, 2 August 2007.

14. That Ms D and Ms F appear before the Court at 12.00 noon on 2 August 2007 to give evidence concerning their dealings with the mother and information they have which may assist in locating the children.

15. Upon the undertaking of Ms G that she will return the Department of Community Services file to the Court on the resumed hearing on 2 August 2007 without alteration to any past records, the file is released to Ms G.

16. That pursuant to s 65DA(2) and s 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Ryan delivered this day will for all publication and reporting purposes be referred to as SAN & KMA and Anor

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: (P)NCC1142 of 2007

SAN

Applicant Father

And

KMA

First Respondent Mother

And

MRS N

Second Respondent Paternal Grandmother

REASONS FOR JUDGMENT

Introduction

1. On Saturday 28 July 2007, two officers from the Department of Community Services (DoCS) removed E and N from their paternal grandmother, Mrs N.  The two children, who are respectively four and nearly three years old, had been delivered to her on Wednesday, 25 July 2007 pursuant to orders made in a Hague Convention application determined by the Family Court at Christchurch in New Zealand. Having taken the children DoCS delivered them to their mother.  The children’s whereabouts cannot now be ascertained.  

2. There are no operative parenting orders and there is reason to believe that DoCS has acted without requisite authority. 

3. On the father’s oral application, supported by an application for parenting orders filed 31 July 2007 the matter came before me urgently on 31 July 2007.  At about 8 pm I made the orders identified at the start of this judgment.  These are my reasons for the orders.

Background facts

1. On 7 March 2006, the children’s mother Ms A wrongfully removed the children from where they were living in Brisbane and moved to New Zealand.  Following defended hearings, on 16 October 2006 the Family Court of New Zealand ordered the children’s return to Australia.  Presumably so that the parties could consider the judgment’s ramifications and make appropriate arrangements for the children’s orderly return the proceedings were adjourned.  When the children were not returned and there was no agreement concerning their future arrangements on 5 December 2006 the Family Court of New Zealand entered orders in accordance with its 16 October 2006 decision. 

2. The mother appealed to the High Court of New Zealand against the order for the children’s return.  The High Court dismissed her appeal on 16 March 2007. 

3. On 5 June 2007, the Court of Appeal of New Zealand refused the mother’s application for leave to appeal the 16 March 2007 decision of the High Court of New Zealand. 

4. On 19 June 2007 the Family Court in Christchurch refused the mother’s stay application and granted the Secretary for Justice’s (as the New Zealand Central Authority) application for warrants to secure the children’s return to Australia.  The Family Court ordered that the warrants lie for 21 days and not issue if the mother returned the children to Australia.  When she failed to do so, the warrants issued and the children were delivered to the paternal grandmother.  The paternal grandmother received the children at their father’s behest and together they returned to the home in which she and the father reside.  This was the first time that the father or his mother had seen the children following their removal from Australia. 

5. On Friday 27 July 2007 the father attended T Local Court, apparently with the intention of seeking advice concerning his and the children’s situation.  Whilst there he spoke with Sergeant W of T Police.  Sergeant W informed him that New South Wales Police had received a request to register a Protection Order.  A Protection Order is the New Zealand equivalent of a New South Wales Domestic Violence Order.  As far as Sergeant W and thus the father were aware, the Protection Order was not yet registered and it was likely to be some little time before it was. It now appears that the Protection Order was registered in N Local Court later that day.  Service of the order has not been affected upon the father.

6. The following day, a New South Wales Police Officer arrived at the father and the paternal grandmother’s home.  The father was told that the New Zealand Protection Order was now registered in NSW as a consequence of which the father could not live in the same home as the children, indeed could not have any contact with them unless a court exercising family law jurisdiction ordered it. As is commonplace in these orders, the Protection Order preserves to a family or similar court the power to determine any protected children’s parenting arrangements.  The father said he would leave the premises and placed the children into his mother’s care.  He was given time to farewell the children and pack a bag.  The father told the children he was going to work and would be absent for a few days.  The police officer delivered the father to a friend’s home at ….   

7. Some time after lunch on Saturday 28 July 2007, two officers from the Department of Community Services arrived at the paternal grandmother’s home.  They are Ms M and Ms S.  The DoCS officers informed the paternal grandmother that they were there to collect the children.  When she inquired why and upon whose authority she was informed that the officers were acting pursuant to the Director General of the Department of Community Services’ authority.  When the paternal grandmother asked for paperwork concerning the children’s removal, she was informed that the relevant paperwork was at the (C) DoCS office.  The DoCS officers did not and have not subsequently given the paternal grandmother any paperwork.  The DoCS officers sought the paternal grandmother’s permission to enter her home and retrieve the children.  She refused. 

8. The paternal grandmother telephoned the father and informed him of the unfolding events.  The father arrived at the home shortly afterwards.  So as to comply with the unserved Domestic Violence Order the father did not enter the property.  He spoke to police who at DoCS request had accompanied the two officers referred to.  When the paternal grandmother left the house so as to speak to the father at the roadway both DoCS officers entered the paternal grandmother’s home, took the children and carried them away.  Later that afternoon, DoCS officers delivered the children to their mother.  The mother and the children remained at a women’s refuge in Newcastle overnight and the following day left by train for Sydney.

9. Immediately after DoCS removed the children, the father contacted the DoCS Helpline.  He was informed that the Director-General had ordered the children’s apprehension.  That weekend the father made a number of telephone calls to the Helpline and on each occasion he was given the same information.  In spite of his requests DoCS declined to inform the father where the children were.  Afraid that the mother may again remove the children from Australia, he contacted the Family Court’s after hours service.  On the father’s oral application, Justice Steele made the following ex parte orders.

   1.Until further order the Respondent and her servants and/or agents are hereby restrained from removing or attempting to remove or causing or permitting the removal of the children [E] date of birth […] 2002 (male) and [N] date of birth […] 2004 (female) from the Commonwealth of Australia.

   2.It is requested that the Australian Federal Police give effect to this order by placing the names of the said children on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watch List until further order or the Court orders its removal.

   3.The Marshal and all officers of the Australian Federal Police and the police forces of the States and Territories are requested and authorised to give effect to these orders.

   4.This matter is listed before a Judge of the Family Court of Australia at Newcastle registry on 31/07/2007 at 10.00 am.

10. In accordance with the ex parte orders, these proceedings were listed before me at 10.00 am on 31 July 2007.  Upon becoming aware that there were adjourned proceedings in this court’s Brisbane Registry, arrangements were made for copies of documents filed in those proceedings to be sent to this registry.  These revealed that on 18 June 2007 the mother applied for parenting orders, in effect that the children live with her in New Zealand and for a divorce.  In neither of her application, affidavit or application for waiver of court fees did the mother provide an Australian address for service.  On each document she gives her lawyer Ms Alexis Hart of Parnell Law care of an Auckland post office box as her address for service or contact address.   The effect of this is that the mother gave the Court no information which may assist in locating her other than through her New Zealand lawyer.

11. By Family Law Rule 8.05 

    (1)A party must give an address for service if:

    (a)the party files or responds to an application; or

    (b)the party seeks to be heard by the court.

    (2)A party must give only one address for service for each application filed.

    (3)A party may give an address for service:

    (a)in the first document filed by the party; or

    (b)by filing a Notice of Address for Service.

    (4)An address for service:

    (a)must be an address in Australia where documents may be left or received by post;

    (aa)must include a telephone number at which the party may be contacted; and

    (b)may include a facsimile number and an address for service by electronic communication.

    (5)A party may include an address for service by electronic communication only if documents sent to or from that address can be read by the computer software of each party and the court.

12. It is difficult to understand how the mother was permitted to file and continue her application without an order dispensing with compliance with r 8.05.  There is no evidence on the courts file that such an order was sought or made.

13. Although the mother knew the father’s residential address and contact numbers, she did not give this information in any of the documents she filed in the Family Court at Brisbane. There is no evidence of service of these documents upon the father.  It appears that he became aware of the proceedings following reference to them during the New Zealand Hague proceedings. 

14. On 27 June 2007 the father wrote to the Family Court at Brisbane providing a precis of the New Zealand proceedings and seeking clarification of whether there were any current proceedings in which he is a party.  In the event that there were, he requested that copies of the documents be forwarded to him directly or, on the basis that he would collect them, to the Family Court at Newcastle.  In the event, the father did not receive the documents and, when the application was listed before a Judicial Registrar on 2 July 2007, he did not appear.  Ms Hart, on behalf of the mother, appeared from New Zealand by telephone.  The proceedings were adjourned without any additional orders.  They are next listed for hearing on 16 August 2007.

15. The Brisbane Family Court’s file revealed correspondence from the Queensland Department of Child Safety dated 3 July 2007.  This department is the requesting Central Authority who sought the children’s return to Australia via the New Zealand Hague proceedings.  This letter reveals that the Department of Child Safety sought advice from the Family Court concerning the status of the mother’s application, including the outcome of proceedings on 2 July 2007.  This was so that information could be provided to the New Zealand courts in the Hague proceedings.  When the proceedings commenced before me yesterday, Ms B from the Court Services Unit of the Department of Child Safety kindly appeared in order to aide the Court’s understanding of what was starting to appear to be complex litigation. 

Jurisdiction

1. By filing her Brisbane family law application the mother says that this Court has jurisdiction to make parenting orders about these children.  The mother deposes that both parents and the two children are all New Zealand citizens.  It is clear that she and the children were in New Zealand and she makes no mention of the father’s whereabouts.  The mother informs the Court that there are no operative parenting orders.

2. The Court’s jurisdiction to make orders concerning children is found in s 69E of the Family Law Act 1975 (the Act). Section 69E provides:

   (1)Proceedings may be instituted under this Act in relation to a child only if:

   (a) the child is present in Australia on the relevant day (as defined in subsection (2); or

   (b)the child is an Australian citizen, or is ordinarily resident in Australia, on the relevant day; or

   (c)a parent of the child is an Australian citizen, is ordinarily resident in Australia, or is present in Australia, on the relevant day; or

   (d)a party to the proceedings is an Australian citizen, is ordinarily resident in Australia, or is present in Australia, on the relevant day; or

   (e)it would be in accordance with a treaty or arrangement in force between Australia and an overseas jurisdiction, or the common law rules of private international law, for the court to exercise jurisdiction in the proceedings.

   (2)In this section:

   “relevant day” , in relation to proceedings, means:

   (a) if the application instituting the proceedings is filed in a court - the day on which the application is filed; or

   (b)in any other case--the day on which the application instituting the proceedings is made.

3. As the father was present in Australia on the relevant day it is clear that the Court had jurisdiction to determine the mother’s application when it was filed. When the father commenced his application, he, the mother and children were all in Australia.  Prima facie the Court has jurisdiction to make orders regarding the children.   

4. Notwithstanding these matters, when the matter commenced, I was uncertain that the Family Court retained its jurisdiction over the children. This is because it appeared that the Director-General of the New South Wales Department of Community Services either by a Children’s Court order or pursuant to s 43 of the Children and Young Persons (Care and Protection) Act 1998, had assumed the children’s care. This followed from their actions in removing the children from the paternal grandmother on the previous weekend. In the event DoCS had taken action pursuant to s 43 of the Children’s Care and Protection Act 1989 or pursuant to a Child Welfare order, s 69ZK of the Act prevents a court exercising jurisdiction under the Act from making a parenting order in relation to a child who is under the care of a person pursuant to a child welfare law.  This is subject to two exceptions, namely, the proposed parenting order is expressed to come into effect when the child ceases to be under that care or it is made in proceedings instituted or continued with the written consent of the relevant child welfare officer.  Neither of the exceptions applied in this case.

5. Upon becoming aware that DoCS officers had removed the children over the weekend, the Queensland Department of Child Safety tried to establish with them the basis upon which they acted. Ms B informed the Court that she had been dealing with DoCS legal branch, which thus far had been unable to explain its officer’s actions. So as to clarify this issue, the matter was stood down until later in the morning with DoCS invited to appear and clarify the situation. When the matter resumed the legal officer appearing on DoCS behalf informed the Court that there was no order of a Children’s Court concerning the children and no Children’s Court proceedings were contemplated. DoCS had not proceeded pursuant to s 43 of the Children and Young Persons (Care and Protection) Act 1998 and the legal officer was at a loss to explain upon whose authority DoCS removed the children.  At this stage it was becoming increasingly clear that DoCS may have lost contact with the mother and the children.  As they were the last point of contact with the mother, the matter was again stood down with an order made for a nominated DoCS officer to attend and answer questions which may assist in locating the children. 

1. When the matter resumed the Court took evidence from the father and the paternal grandmother and Ms G, who is the Manager of Client Services at C DoCS. Ms G confirmed that there is no s 43 Children’s Care and Protection Act 1989 order or delegated authorisation on its file and no Children’s Court proceedings have been commenced or are contemplated.  In this circumstance there appears no doubt that the Court has power to make orders concerning the children.

2. Ms G’s evidence and the concessions made by DoCS legal officers invite the question from which source of power DoCS purported to act? Although Ms G has been involved with the matter, she was not involved in the decision to remove the children.  This decision appears to have been made by Ms F in conjunction with Ms D, neither of whom was available on 31 July 2007. 

Attempts to notify the mother and locate the children

1. After questioning Ms G, the Court learned that the mother and children had been at a women’s refuge in Newcastle.  With the refuge number produced from the DoCS file, during the hearing my Associate telephoned the refuge seeking information which may assist in locating the mother. The refuge worker advised that the mother and children left for Sydney on Sunday morning.  The refuge worker referred the Court to its refuge manager.  After a series of telephone calls, the refuge manager was contacted after hours.  She confirmed the prior worker’s advice that the refuge understood that the mother caught a train at Wyong for Sydney.  The Court was advised that she understood Ms Hart, the mother’s New Zealand lawyer, had arranged for her to travel to Queensland, probably Brisbane, where the mother and children may be in a refuge. 

2. When the matter was unfolding earlier in the morning at my request, my Associate attempted to contact Ms Hart in New Zealand so as to try and give the mother notice of the proceedings and also obtain assistance to locate the children.  Having obtained Ms Hart’s telephone number from the Queensland Department of Child Safety (it not being included in any of the mother’s court documents), my Associate telephoned her office.  The office was unattended and my Associate left a message explaining the purpose of her call and requesting that Ms Hart urgently contact the Court on my Associate’s telephone number.  A number of calls were made by my Associate to this number throughout the day.  Ms Hart did not return the calls.  My Associate also dialled a mobile telephone number which Ms Hart has previously provided in the Hague proceedings.  My Associate informs me that when dialled this telephone number produced a recorded message that it is no longer operational.

3. From the DoCS file, another possible contact number was revealed.  When the Court telephoned this number the mother’s mother, Mrs A, who is in New Zealand answered the telephone.  The maternal grandmother said that her daughter was in Australia with the two children.  She said her daughter called her on Sunday evening and informed her that she had retrieved E and N and that they are well.  Notwithstanding that at least one of the mother’s other children is with the maternal grandmother, she said she has no way of contacting her daughter and does not know where she and the two children with whom we are concerned presently are.  I explained to the maternal grandmother that I was concerned to hear from her daughter so that the Court could receive evidence from both parties before making even a short term decision about the children.  Even after I explained that I was contemplating making parenting orders in favour of the children’s paternal grandmother and issuing a recovery order for the children, the maternal grandmother insisted that she had no information which could assist in locating her daughter or the children.  The maternal grandmother agreed that if orders were made and communicated to her in the event that her daughter makes contact, she will tell her of their existence and advise her to urgently contact her lawyer and the Court. 

4. The maternal grandmother provided a mobile telephone number which she says belongs to the mother.  It is the same number that DoCS has on its file.  My Associate rang this number on numerous occasions throughout the day and on each occasion, including during the hearing, this resulted in a recorded message which said the number was no longer operative or otherwise rung out.

5. At the end of the day, DoCS informed the Court that they had no additional information which may assist in locating the mother or children.  The father had no further information about where the mother or children may be located, nor did his mother. 

6. In her application to waive fees and affidavit the mother says all of her family are in New Zealand and she has no accommodation in Australia.  She deposed that she has no entitlement to any form of social security.  The effect of this is that there is no apparent government department or agency with information that a s 67M Location or s 67N Commonwealth Information Order could reasonably be expected to produce information concerning the children’s whereabouts.  In these circumstances, my options were to:

   (a)do nothing and hope that the mother may subsequently reveal herself and the children,

   (b)make an interim parenting order in the father’s favour and issue a recovery order;

   (c)give the father’s mother leave to intervene in the proceedings and make an interim parenting order in her favour and issue a recovery order;  or

   (d)leave it to the Department of Community Services to find the children.

Conclusion

1. The children’s best interests are the Court’s paramount consideration. 

2. At this stage the Court has reasonably limited information about the children and their parents.  Clearly in any subsequent hearings a different picture of the family’s circumstances may emerge.

3. Fortunately the Court has access to a number of judgments published in the New Zealand Hague proceedings.  These traverse the children’s circumstances and discuss in detail the mother’s various risk allegations made against the father.   From these judgments it is clear that the children have lived with their mother all of their lives.  The children were 2½ and 1½ years old when the parties separated and since then have only seen their father for four days.  During cohabitation the mother was primarily responsible for the children’s care and the father was generally employed.  His role in the children’s care, before and since separation has been less than the mother’s.

4. It is likely that the children are strongly attached to their mother and prolonged separation from her is likely to be distressing for them.

5. The children’s older half siblings, D and C, have been living with them in New Zealand.

6. N was born in Australia and lived here until the mother’s return to New Zealand last year.

7. E lived in Australia from June 2003 until the mother’s return to New Zealand last year.

8. The mother relied upon three grounds of defence to resist the children’s return to Australia.  They are:

   (a)That the father was not exercising rights of custody when she took the children from Australia.

   (b)That he acquiesced in removal.

   (c)That there is a grave risk to the children that the return would expose them to physical or psychological harm or would otherwise place the children in an intolerable situation.

9. In all respects the mother failed to establish these allegations.

10. In relation to the grave risk ground the mother particularly argued that the children are at risk from the father’s domestic violence and/or drug abuse.  These issues are discussed in detail in the reserve judgment of Judge Strettell delivered 16 October 2006.  Having considered all of the evidence, which is more extensive than that which the mother has filed in this court, and includes the history of domestic violence orders, Judge Strettell found: 

    The objective assessment of the evidence taking particularly into account the evidence of Sergeant [X], Mrs (A’s) witness, indicates a low risk of physical harm and a low to moderate risk of psychological harm.  To repeat the earlier findings, there is no evidence of any physical violence; the incidents referred to in the affidavits are classified by the police as of a minor nature.  I differentiate between the impact of the effect of the alleged physical and psychological risk, not because of the evidence satisfying me in a particular respect that there was an evident and greater psychological risk arising from any particular incident but because of the Court’s own experience, that the impacts of parents continuing an abusive relationship over a period of time has a negative effect on their children’s psychological wellbeing.  The incidents therefore, whilst themselves each being of a minor nature, I nevertheless draw the inference that the cumulative effect on the children may be greater and hence the moderate risk.

11. In the few days that the children were with their father and paternal grandmother recently, the evidence indicates the children were settled and happy.  DoCS raise no concerns about the children’s appearances or emotional wellbeing when they attended on Saturday.

12. I turn now to consider each of the available options. 

13. If no orders were made, this avoided the necessity to proceed ex parte and enabled the children to remain in the mother’s care.  There appears no issue that they have always lived with her.  However, the father says this option involves the real possibility that he may not see the children for a long time, perhaps ever.  Thus although the children will have a meaningful relationship with their mother they will have none with he or his family.  This is a weighty consideration.  He emphasised that the mother has already removed the children from Australia without his consent.  Her application to this Court in Brisbane appears to involve subterfuge and an attempt to obtain orders without notice to him.  The mother has not notified the father of the children’s whereabouts, or indeed given him notice that she was coming to Australia and sought the children’s return.  The mother has not relisted the Brisbane proceedings and sought the Court’s imprimatur for her actions.  If indeed she has hidden her whereabouts from her mother, this appears to have been done so as to escape detection.  Combined these circumstances indicate that the mother has gone into hiding with the children and is not in a position to provide them with appropriate stability or living arrangements.  These submissions carry considerable force.

14. The whole of these circumstances suggests that if the children are to be located a recovery order is required.  Pursuant to s 67 Q a recovery order can only be made so as to require the return of a child to:

    ·a parent of the child; or

    ·a person with whom the child is to live under a parenting order; or

    ·a person with whom the child is to spend time under a parenting order; or

    ·a person with whom the child is to communicate under a parenting order; or

    ·a person who has parental responsibility for the child.

15. A recovery order cannot be used solely to locate children.

16. Because of the risk that the mother may again abscond with the children, a recovery order requiring the children’s delivery to her is self defeating.  Although the Court may briefly become aware of the children’s whereabouts, there is too great a risk that they would again disappear.

17. Until recently the father lived with his mother.  He appears capable of attending to the children’s physical wellbeing and is keen to assume their care.   The father is subject to a Protection Order, which has been registered in Queensland and New South Wales.  Although the original order was obtained ex parte, clearly the mother has been able to persuade a Court that she and the children require protection from the father.  However, having regard to Judge Strettell’s findings the evidence in its entirety suggests that provided the children’s parents are not able to argue with each other there is little risk of family violence.  Notwithstanding this I am reluctant to make parenting orders in the father’s favour until I am in a position to do so having heard more extensively from him and the mother.  While this may do him an injustice as my orders will hopefully be of short duration, there should be little impact upon his relationship with the children.   

18. The paternal grandmother has long enjoyed a good relationship with the children.  Until they left for New Zealand, she regularly visited during school holidays and spent time with them.  In the four days that the children were recently with her, she says they were settled and happy.  The paternal grandmother works in an after hours school care centre and enjoys good relationships with her children.  She lives in rented accommodation.  The paternal grandmother has never been subject to domestic violence orders or child protection orders.  She is 52 years old and presented as a competent and caring grandmother.  The Department of Community Services raises no concerns about her ability to provide for the children in the short term.  This is subject only to the Court ordering that if the children are with her, they are limited to telephone contact with their father until the Court can determine future care arrangements.  The paternal grandmother agreed she would abide these conditions and her resolve is strengthened by her commitment to abide the Court’s order that if the father approaches the children whilst they are in her care she will telephone the police.  In the mother’s application to this Court, she makes no complaint about the paternal grandmother and does not appear to have done so in the Hague proceedings.  If the children reside temporarily with the paternal grandmother there appears to be no risk that she will disappear with them.  

19. In the difficult circumstances of this case, I am satisfied that in the short term the children’s best interests are served by being cared for by their paternal grandmother until such time as the Court can make further orders with all parties participation.  Plainly these orders are made ex parte.  This is a step of last resort which is taken only because there appears to be no avenue remaining which seems likely to reveal the mother and children’s whereabouts.

20. In the hope that the mother may become aware of these orders and reveal her and the children whereabouts, notice of the orders is to be given to Ms Hart and the maternal grandmother.  The terms of the orders are self explanatory and I trust Ms Hart and the maternal grandmother will cooperate in using their best endeavours to bring these proceedings and orders to the mother’s notice.

21. The parties need to appreciate that if they cannot agree upon the children’s parenting arrangements, they must fully cooperate so that a court can hear from each of them and determine the issue.

1. For these reasons I make the orders identified at the start of this judgment.

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan

Associate: 

Date:  2 August 2007