State Central Authority and Detres

FAMILY COURT OF AUSTRALIA

STATE CENTRAL AUTHORITY & DETRES

[2011] FamCA 79

FAMILY LAW – CHILD ABDUCTION – Commonwealth Information and Location orders

APPLICANT:

State Central Authority

RESPONDENT:

Ms Detres

INDEPENDENT CHILDREN’S LAWYER:

Ms M. Lonergan

FILE NUMBER:

MLC

11920

2010

DATE DELIVERED:

6 January 2011

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Bennett J

HEARING DATE:

6 January 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Carey

SOLICITOR FOR THE APPLICANT:

State Central Authority, Department of Human Services

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

No appearance

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Harris

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms M. Lonergan, Victoria Legal Aid

Orders

EX-PARTE

There be leave to the applicant State Central Authority to file the application in a case in which it seeks Commonwealth Information and Location Orders.
There be leave to the applicant State Central Authority to make oral application for a location order directed to the proper officer of the Department of Education and Early Childhood Development to ascertain whether the department has any records of an application for enrolment for the child B born … April 2005 and may otherwise be known as … for enrolment in any government or other school.
Pursuant to s 67N of the Family Law Act 1975, the Secretary or General Manager of Medicare Australia (‘Medicare’) provide the Registrar of the Family Court of Australia at Melbourne (‘the Registrar’) such information that is contained in the records of Medicare or that Medicare may obtain in relation to the whereabouts of:-
a.The respondent mother Ms Detres born … 1968 in the United Kingdom;
b.The said child, B (also known as …) born … April 2005 in the United Kingdom;
c.Any drivers licence number of a licence in the name of the respondent mother; and
d.Any passport number of any passport in the names of the respondent mother and the child, B and the country issuing the passports.
The Secretary or General Manager of Medicare not be required to search the records of Medicare more than once every month during the currency of the order which shall be one year from the date hereof.
That, pursuant to s 67N of the Family Law Act 1975, the General Manager of the Australian Taxation Office (‘ATO’) provide to the Registrar of the Family Court of Australia at Melbourne such information that is contained in the records of the ATO or that the ATO may obtain in relation to:
a.The respondent mother Ms Detres born … 1968 in the United Kingdom;
b.The said child, B (also known as …) born … April 2005 in the United Kingdom; and
c.Any bank account (including branch and account number) into which any taxation returns or payments by the Australian Tax Office may be made to the mother.
That the General Manager of the Australian Taxation Office not be required to search the records of the Agency more than once every month during the currency of this order which shall be for one year from the date hereof.
That, pursuant to s 67M of the Family Law Act 1975, the General Manager of the Residential Tenancies Bond Authority (‘the Authority’) provide to the Registrar of the Family Court of Australia at Melbourne such information that is contained in the records of the Authority or that the Authority may obtain in relation to:
a.The respondent mother Ms Detres born … 1968 in the United Kingdom;
b.The said child, B (also known as …) born … April 2005 in the United Kingdom; and
c.Any bank account (including branch and account number) from which any payments by the mother may have been made.
That the General Manager of the Residential Tenancies Bond Authority not be required to search the records of the Authority more than once every month during the currency of this order which shall be for one year from the date hereof.
That pursuant to s 67M of the Family Law Act 1975, the Director-General, Department of Education and Early Childhood Development provide to the Registrar of the Family Court of Australia at Melbourne such information that is contained in the records of the department or that the department may obtain in relation to:
a.The respondent mother Ms Detres born … 1968 in the United Kingdom;
b.The said child, B (also known as …) born … April 2005 in the United Kingdom; and
c.Any records of an application for enrolment for the child B (also known as …) born … April 2005 for enrolment in any government or other school.
That the Director- General, Department of Education and Early Childhood Development, Victoria not be required to search the records of the Department more than once every month during the currency of this order which shall be for one year from the date hereof.
That leave be granted to the Registrar to disclose the information provided to the Registrar by:-
a.the General Manager or the Secretary of Medicare pursuant to order 3 above;
b.the General Manger of the Australian Taxation Office pursuant to order 5 above;
c.the General Manager of the Residential Tenancies Bond Authority pursuant to order 6 above;
d.the Director-General, Department of Education and Early Childhood Development pursuant to order 9 above; and
to the solicitor for the applicant, and to a process server engaged by the applicant, and to the employees of the Commonwealth Central Authority and all State and Territorial Central Authorities.
The applicant State Central Authority serve the following documents on respondent mother as soon as practicable with:-
a.the applications filed 6 January 2011;
b.the subpoena filed 6 January 2011;
c.this order; and
d.my reasons for decision given this day.
The applicant State Central Authority divulge to the independent children’s lawyer such information as has come into its possession as to the entry into Australia of the child B and any departure of the child from Australia.
The applicant State Central Authority make enquiries of the Australian Federal Police AND IT IS REQUESTED that the Australian Federal Police assist the applicant by disclosing whether or not there is a record of the child having departed Australia on any date after 3 August 2010, and if so:-
a.when departure occurred;
b.from which port; and
c.the stated destination of the child.
That leave is granted to the applicant State Central Authority to issue a subpoena directed to the Proper Officer of Z Hospital for the production of copies of all personnel files, correspondence or other documents for, or in relation to, the mother, born … 1968, showing her place of residence, address for correspondence and/or other contact details and such subpoena be returnable tomorrow.
Otherwise this matter be adjourned to Friday 7 January 2011 at 9.30 am NOTING that if any documents have by that stage been produced pursuant to the subpoena referred to herein, then they may be released at that time.
The reasons for judgment this day be transcribed and when settled copies be made available to the parties.

IT IS NOTED that publication of this judgment under the pseudonym State Central Authority & Detres is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 11920 of 2010

STATE CENTRAL AUTHORITY

Applicant

And

MS DETRES

Respondent

REASONS FOR JUDGMENT

EX-TEMPORE

In this matter I deliver the following reasons for decision. This matter comes before me in what was intended to be the first return date, following service on the respondent mother of the application of the State Central Authority, filed on 22 December 2010. However, the mother has not been able to be served. The application indicates that the mother was in the employ of and resident in the premises of the Z Hospital. Attempts to serve her at those premises have been unsuccessful and I am advised by the representative of the applicant, Ms Carey, that the mother is no longer employed by that organisation.
There is some indication that a process server, retained by the applicant, may have had a discussion with someone at the Hospital, who was then going to notify the mother that documents were sought to be served on her. Ms Carey has been unable to verify whether that conversation, in fact, did take place and if it did, with whom, and, more significantly, whether anyone did contact the mother to notify her of the likelihood of her being served with documents.
This matter proceeds today again in the absence of the mother and without the mother having an opportunity to be heard. She has also not had any opportunity, of course, to answer the allegations that are set out in the application.
The evidence in support of the application indicates that the mother left the United Kingdom on or about 18 March 2008 and went to the Philippines, which is not a party state to the 1980 Hague Convention. As I mentioned in my reasons on 23 December 2010, Australia has a responsibility to locate children, the subject of applications such as these. In all the circumstances of the case, I think it is warranted that the subpoena, that the State Central Authority has prepared today, be issued and be returnable tomorrow afternoon. Furthermore, that the application in the case for location and information orders be dealt with urgently. Under section 67N of the Act, the Commonwealth department or instrumentalities are entitled to service of an application, at least seven days prior to being ordered to produce the documents. There is provision for the court, in special circumstances, to abridge that time.
I am informed by Ms Carey that prior to handing up the application in the case, she had a discussion with an officer of each instrumentality or department, to which section 67N (3)(b) would apply, and has been advised that they will not insist on seven days’ service. Again, in circumstances where it has not been possible to locate this child for the last two weeks, I am satisfied that it’s appropriate to move as quickly as possible and I will make those information orders today.
In the event that there is difficulty for the instrumentalities or departments in complying with the order, I will, of course, receive any submissions they wish to make and will consider extending times to enable them to comply in an orderly and more convenient manner.
When the mother is located, I require her to be served with all of the documents that have been filed and processed in her absence. For the avoidance of doubt, the earlier orders that I made on 23 December 2010 in relation to the care of the child, the restrictions on the movement of the child, the surrender of the child’s passports, all remain in full force and effect.
It appears that since that first return date, the applicant has ascertained that the child entered Australia on 3 August 2010. It is desirable in my view, and is otherwise sought by the independent children’s lawyer, that the applicant make such inquiries as she can of the Australian Federal Police to see if the child has departed Australia since 3 August 2010.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 6 January 2011.

Associate:

Date: 21 February 2010

[2011] FamCA 79

6 January 2011

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