Secretary, Department of Family and Community Services and Evelyn

[2016] FamCA 527

FAMILY COURT OF AUSTRALIA

SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES & EVELYN [2016] FamCA 527

FAMILY LAW – CHILD ABDUCTION – Hague convention application

Family Law Act 1975 (Cth) Part VII
Family Law (Child Abduction Convention) Regulations 1986 (Cth)

APPLICANT: Secretary, Department of Family and Community  Services 

RESPONDENT: Ms Evelyn

FILE NUMBER: SYC 3190 of 2016

DATE DELIVERED: 26 May 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 26 May 2016

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Legal Services, Department of Family and Community Services

SOLICITOR FOR THE RESPONDENT: n/a

Orders

1. The respondent mother, Ms Evelyn born … 1983, is to be served with sealed copies of the application and the annexures and of these orders no later than 4pm 30 May 2016 and that the application be returnable before this court on 6 June 2016 at 10.30am.

2. The hearing date of 8 July 2016 before the Honourable Justice Watts is confirmed.

3. Sealed copies of this Application and these orders be served upon the Commissioner, Australian Federal Police.

4. The parties are at liberty to apply herein on twenty-four hours notice.

IT IS NOTED that publication of this judgment by this Court under the pseudonym DFCS & Evelyn 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 3190  of 2016

Secretary, Department of Family and Community Services 

Applicant

And

Ms Evelyn

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The Department has filed an application for a return order pursuant to the Family Law (Child Abduction and Convention) Regulations which has not yet been served. The Department seek ex parte orders.

2. The child B born in 2009 (currently aged 7) has been residing with the mother in Australia since November 2013. The father alleges there was a wrongful retention on 20 June 2014. The application for the return order has been filed on 23 May 2016. In those circumstances the Central Authority does not satisfy the provisions of s 16(1)(b).

3. On the facts set out in the application it is highly likely that the mother will ask the court to find that the child has settled into her new environment. If the mother satisfies the court of that then the court is not bound to make a return order.

4. By way of ex parte application the Department seeks short minutes of order in the terms of [1] to [5] of Exhibit 1 as follows:

   1.That until further order the respondent mother, [Ms Evelyn] born … 1983, 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, [B] (female) born … 2009, 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 Evelyn] born … 1983, is to 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 Evelyn born … 1983 and the child, [B] (female) born … 2009, is to 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 order placing the names of the child and the respondent on the Watch List shall lapse 12 months from the date the names were placed on the Watch List.

   5.That until further order, the respondent mother, [Ms Evelyn] born … 1983, is to surrender forthwith to the Registrar of the Family Court of Australia, all current passports and air tickets relating to herself and the said child, [B] (female) born … 2009.

5. Those applications are made pursuant to the provisions of Regulation 14(2) of the Family Law (Child Abduction Convention) Regulations. The test to be applied to be successful under that sub-regulation is that there needs to be reasonable grounds to believe there is an appreciable possibility or a threat that the child will be removed from Australia.

6. The Central Authority points to the marriage certificate of the parents (page 19 of the application) and submits that a fact relevant to this ex parte application is that the maternal grandmother was born in the Middle East. The submission made was that the mother has a “middle eastern connection”. I place no weight on that submission. The mother was born in Australia.

7. There are no details as to the mother’s movements between the date of her birth in 1983 in Sydney and the date of her marriage to the father of the child in the  United States of America in 2009. The parties resided as a family in US from 2009 until 2013 when the mother returned to Australia with the child with the consent of the father. The mother has resided in Australia since that time.

8. As I have already said, the father asserts that there was a wrongful retention on 20 June 2014 but did nothing in terms of filing an application under the Abduction Regulations until three days ago.

9. In those circumstances there is no evidence presented by the Central Authority that would satisfy me that there were reasonable grounds to believe that there is an appreciable possibility or a threat that the child will be removed from Australia and I dismiss the application for interim orders pursuant to Regulation 14(2) for that reason.

10. I otherwise make the orders sought in Exhibit 1.

I certify that the preceding ten (10) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts delivered on 26 May 2016

Associate: 

Date:  26.5.16