State Central Authority; Department of Human Services and Fielding

[2014] FamCA 255

FAMILY COURT OF AUSTRALIA

STATE CENTRAL AUTHORITY; DEPARTMENT OF HUMAN SERVICES & FIELDING [2014] FamCA 255

FAMILY LAW – ex parte with orders – injunction

Family Law Act 1975 (Cth)

APPLICANT: State Central Authority; Department of Human Services

RESPONDENT: Mr Fielding

FILE NUMBER: MLC 2391 of 2014

DATE DELIVERED: 25 March 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 25 March 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Accornero

SOLICITOR FOR THE APPLICANT: Department of Human Services

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 21 March 2014.

2. THAT the application be adjourned for further hearing on 3 April 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 4 pm on 2 April 2014;

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

   (c)he attend Court personally on 3 April 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 child B (born … 2010) (“the child”):

   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 reside. 

6. THAT the Australian Federal Police place the name 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.

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 name 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.

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 & Fielding 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 2391 of 2014

STATE CENTRAL AUTHORITY; DEPARTMENT OF HUMAN SERVICES

Applicant

And

Mr Fielding

Respondent

REASONS FOR JUDGMENT

1. This is application for which leave is sought and is being given to deal on an ex parte basis. It is an application under the Family Law Child Abduction Convention Regulations (1986). The facts here are asserted that in December 2013 the father and B came to Australia with the consent of the child’s mother for a two-week holiday, and subsequent to that time there have been some intervening events including some surgery for the child, but it would otherwise appear that the child was in a position to travel back to New Zealand at the end of January. According to the assertion of the applicant the father has retained the child in Australia contrary to the mother’s rights of custody. Having regard to the fact that the father has adopted a position according to the material under which he does not intend to keep the mother informed of events, it is appropriate that the matter proceed at this stage to preclude the father from leaving the current state.

ORDERS DELIVERED

I certify that the preceding one (1) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 25 March 2014.

Associate: 

Date:  16 April 2014