Department of Communities, Child Safety and Disability Services & Wilson (No.2) [2012] FamCA 478

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Orders

The child K born … April 2011 be returned to New Zealand and for the purposes of giving effect to this order:

The said child leave the Commonwealth of Australia on or before 7 July 2012.

The said child arrive in New Zealand no later than 7 July 2012.

Pending the said child returning to New Zealand, the respondent grandmother, Ms Wilson, born … July 1969, continue to be restrained and an injunction is hereby issued, restraining her from removing or attempting to remove the said child from the Commonwealth of Australia.

Pending the return of the said child to New Zealand, the respondent grandmother be restrained and an injunction is hereby issued, restraining her from changing the residence of the said child from the premises where the respondent grandmother and the said child are currently residing namely, … G Street, Suburb M in the State of Queensland.

The respondent grandmother forthwith surrender to an officer of the Court Services Unit, Department of Communities, Child Safety and Disability Services all current passports relating to herself and the said child, K born … April 2011.

To facilitate the return of the said child to New Zealand, an officer of the Court Services Unit, Department of Communities, Child Safety and Disability Services be at liberty to release to the respondent grandmother not before 6 July 2012 any current passport relating to the said child for the purposes of the said child’s return to New Zealand; and further, to release the respondent grandmother’s passport to the grandmother.

The orders of the Honourable Justice Kent made 11 May 2012 be discharged forthwith.

Subject to sub-paragraph 1(k) below, the Commissioner of the Australian Federal Police and all Federal Agents of the Australian Federal Police retain the names of the respondent grandmother and the said child, on the All Ports Watch Alert System at all international departure points in Australia.

The Applicant be at liberty to forthwith notify the Australian Federal Police of these orders.

The respondent grandmother provide to an officer of the Court Services Unit, Department of Communities, Child Safety and Disability Services documentary evidence of the child’s flight details and an itinerary not less than 24 hours prior to the scheduled departure date.

The said child and the respondent grandmother be removed from the All Ports Watch Alert System by officers/agents of the Australian Federal Police upon receipt of a letter from an officer of the Court Services Unit, Department of Communities Child Safety and Disability Services advising of the travel arrangements made for the said child to return to New Zealand, from 12.00am (midnight) on the date immediately prior to the date of travel as nominated in the letter.

The Marshall of the Family Court of Australia and the Commissioner and all Federal Agents of the Australian Federal Police and Officers of the Police Forces and Services of the various States and Territories are required and empowered to take all necessary steps to give effect to these orders.

As soon as practicable, the Applicant cause a copy of these orders to be served on the Australian Federal Police.

Liberty to apply be granted to the applicant to seek any further orders necessary to allow him to make such arrangements as are necessary to facilitate and ensure the return of the child in accordance with this order.

All other Applications be dismissed.

There be liberty to apply.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Department of Communities, Child Safety and Disability Services & Wilson (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

By an application filed on 20 April 2012, the Director-General, Department of Communities, Child Safety and Disability Services, in her capacity as the State Central Authority under the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”), applied for final Orders that the child, K, born … April 2011, be returned to the country of New Zealand.

The Regulations, which are made under ss 111B and 111D of the Family Law Act 1975 (Cth) (“the Act”), give effect to the Convention on the Civil Aspects of International Child Abduction (“the Convention”), which is set out in Schedule 1 to the Regulations.

The person who made the “request” within the meaning of reg 2 of the Regulations is the child’s mother, Ms Mills (“the Mother”), who is currently residing in New Zealand, and the Respondent to this application is the child’s paternal grandmother, Ms Wilson (“the Respondent”).

On 11 May 2012, being the first return date of the application, service of it had not then been effected upon the Respondent. Leave was then given to the Applicant to file an Application in a Case and the affidavit of Mr F for the purpose of the Applicant seeking a Commonwealth Information Order and a location Order. On that date, interim Orders, including a location Order and a Commonwealth Information Order were made, based upon the Form 2 application and the material filed in support of it, establishing a prima facie case for a return Order to be made.

The Respondent, by her then-solicitors, filed a Notice of Address for Service on 25 May 2012 and on 15 June 2012, the Respondent filed an Application in a Case supported by an affidavit by herself. Relevantly, the Orders sought in that application were an Order that the Respondent and the child, K, “…be at liberty to leave the Commonwealth of Australia for the purpose of travel to New Zealand within twenty-eight days of the date of the order.” Otherwise, variations were sought to the Orders I had made on 11 May 2012. I note that the affidavit filed by the Respondent records her having instructed lawyers in New Zealand to advance parenting proceedings in relation to K in New Zealand, and the Respondent there expressed a wish to return to New Zealand with K to formalise parenting arrangements. The Respondent otherwise did not address the reasons for her application to the Family Court of New Zealand in her affidavit, and I am informed this morning that there is to be a hearing or return date of that application on Monday 9 July 2012.

Paragraph 6 of the Form 2 Application records the circumstances in which it is said that K was wrongfully removed from New Zealand on 30 December 2012. The affidavit of the Respondent filed on 15 June 2012 does not traverse those allegations, nor any other material filed in support of the application.

Based upon the unchallenged contents of the Form 2 Application and the unchallenged affidavit material filed in support of it, including the expert evidence of Mr A as to the law of New Zealand, and the fact that the Respondent now consents to the making of a return Order, I am satisfied that the Applicant establishes each of the matters set out in reg 16(1A) of the Regulations, and that it is thus appropriate to make the Orders as now sought. As the Respondent does not advance any ground for refusal of the making of a return Order, and indeed consents to one, such an Order must be made.

In those circumstances and for those brief reasons, I make Orders in terms of the draft Order which has been handed up to me which I now initial and place with the file.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 21 June 2012.

Associate:

Date: 25 June 2012