State Central Authority and Flood

[2013] FamCA 703

FAMILY COURT OF AUSTRALIA

STATE CENTRAL AUTHORITY & FLOOD [2013] FamCA 703

FAMILY LAW – Hague Convention – Ex parte interim order.

Family Law Act 1975 (Cth)

APPLICANT: State Central Authority, Department Of Human Services

RESPONDENT: Ms Flood

FILE NUMBER: MLC 5884 of 2013

DATE DELIVERED: 19 July 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 19 July 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Carey

SOLICITOR FOR THE APPLICANT: Department of Human Services

Orders

1. THAT leave is granted to the applicant to proceed without notice to the respondent.

2. THAT the application filed on 18 July 2013 be adjourned for further hearing on 31 July 2013 at 9.00am.

3. THAT the respondent mother:

   (a)       attend Court personally on 31 July 2013; and

   (b)       file and serve a response to the application and any affidavit upon which she intends to rely.

4. THAT until further order, the respondent mother, her servants or agents be restrained by injunction from causing or permitting or suffering the child B (female) born … 2010:

   (a)       to be removed from the Commonwealth of Australia, and in this regard all officers of the Australian Federal Police be directed to enforce, if required, the provisions of such order;

   (b)       to be removed from the State of Victoria; or

   (c)       to reside at any address other than their present residential address or any other residence at which the applicant has agreed that the child may reside.

5. THAT the Australian Federal Police place the names of the child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Airport Watch List until further order of the Court.

6. THAT the respondent mother, her servants or agents forthwith deliver up to the Registrar of the Family Court of Australia at Melbourne for safe custody any and all passports held in the names of the child or upon which the child appears and be restrained from applying for any further or other passports for the child pending further orders of this Court.

7. THAT a sealed copy of these Orders be provided forthwith to the Marshal of the Family Court of Australia, the Commissioner of the Australian Federal Police and the Secretary of the Commonwealth Department of Foreign Affairs and Trade.

IT IS NOTED that publication of this judgment by this Court under the pseudonym State Central Authority & Flood 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 MELBOURNE

FILE NUMBER: MLC 5884 of 2013

State Central Authority, Department Of Human Services

Applicant

And

Ms Flood

Respondent

REASONS FOR JUDGMENT

1. This is an application under the child abduction convention regulations filed by the state central authority at the request of the father of B who was born in 2010.  The information provided by the father is that the child was wrongfully removed from New Zealand in December.  There was an arrangement between the parties that the child was to attend with her mother a wedding, and it is asserted by the father that she mother indicated she would return to New Zealand on 18 January 2013.  That obviously did not happen, and it is thought that the mother is now with a partner somewhere in Melbourne.  It is asserted on the material that the retention of the child in Australia is a wrongful retention and in breach of the father’s rights of custody.

2. This is an application brought on an ex parte basis.  I think it is appropriate in the circumstances where a parent refuses to keep the other parent informed about what is happening and there is some uncertainty about whether or not that parent is in a stable residential situation, to avoid her further change from that area, the applicant be permitted to proceed on an ex parte basis.  There is also some concern in this case as to the condition of the child, and on that basis I propose to make an order requesting that the Department of Human Services do a home visit and investigate the circumstances under which the child is living.  I will adjourn the matter to 9 am 31 July 2013. 

I certify that the preceding two (2) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 19 July 2013.

Associate: 

Date:  3 September 2013