STATE CENTRAL AUTHORITY & CASTILLO

[2014] FamCA 906

FAMILY COURT OF AUSTRALIA

STATE CENTRAL AUTHORITY & CASTILLO [2014] FamCA 906

FAMILY LAW – CHILD ABDUCTION – Hague convention – Application adjourned

Family Law (Child Abduction Convention) Regulations 1986

Family Law Act 1975 (Cth)

APPLICANT: State Central Authority – Department Of Human Services

RESPONDENT: Mr Castillo

FILE NUMBER: MLC 7561 of 2014

DATE DELIVERED: 3 September 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 3 September 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Fedele

SOLICITOR FOR THE APPLICANT: State Central Authority, Department of Human Services

THE RESPONDENT: In person

Orders

1. THAT leave is granted to the applicant to proceed ex parte with orders in terms of paragraphs (b), (c) and (d) of the application filed on 27 August 2014.

2. THAT the application be adjourned for further hearing on 10 September 2014 at 9:00am.

3. THAT the applicant effect service of the application and this Order on the respondent father as soon as practicable.

4. THAT in the event that the respondent father has been served with the application by the adjourned date:

   (a)he file and serve an affidavit in response to the application indicating his defence to the application no later than 10 September 2014;

   (b)he file and serve a Notice for Address for Service; and

   (c)he attend Court personally on 10 September 2014 at 9:00am and remain at Court pending further order of the Court.

5. THAT until further order, the respondent father, his servants or agents be restrained by injunction from causing or permitting or suffering the children L born … March 2001, B born … January 2005 and Y born … June 2008 (‘the children’):

   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 children reside 

6. THAT the Australian Federal Police place the names of the 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 Airport Watch List until further order of the Court.

7. THAT the respondent father, his 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 children or upon which the children appear and be restrained from applying for any further or other passports for the children pending further orders of this Court.

8. 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 & Castillo 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 7561 of 2014

State Central Authority, Department Of Human Services

Applicant

And

Mr Castillo

Respondent

REASONS FOR JUDGMENT

1. This is an application under the Family Law (Child Abduction Convention) Regulations 1986 filed by the State Central Authority on the request of the mother of children who, on the face of the documents, would appear to normally live in New Zealand but who also are citizens of that country. The facts seems relatively simple in that the father came to Australia apparently in about 2012 and by agreement the mother brought the children to Australia it would seem ostensibly for a holiday in early 2013 and then returned to New Zealand and made a request that the father return them but he refused.

2. There is a rather unusual statement that the requesting mother completed the arrival cards in Australia indicating that the children were migrating permanently so that the father could receive Centrelink benefits.  Whatever that means no doubt will be fleshed out but the mother now says that her intention was to indicate that the children were only coming here for a holiday.  Needless to say, the application triggers the requirements under the Convention.  This is an appropriate matter to proceed to make the usual procedural orders and injunction against the father from removing the children, bearing in mind he should understand that he has obligations in relation to the children as well including the fact that they would normally be resident in New Zealand.

3. On that basis, I will make orders in the usual terms, adjourning the matter to 9 o’clock on 10 September 2014, usual injunctions in relation to placing the children on the airport watch list system and requiring the father to file material, if possible, by next Wednesday.

I certify that the preceding three (3) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 3 September 2014.

Associate: 

Date:  22 October 2014