Adanti and Coli

[2017] FamCA 442

FAMILY COURT OF AUSTRALIA

ADANTI & COLI [2017] FamCA 442

FAMILY LAW – PRACTICE AND PROCEDURE – where the wife seeks orders that the husband be placed on the watch list – where the wife seeks orders restraining the removal of the children from Australia – where the husband is not in Australia – where the husband has advised he will be returning to Australia – orders made for the matter to be adjourned – order that the husband personally attend the adjourned hearing date.

Family Law Act 1975 (Cth)

APPLICANT: Ms Adanti

RESPONDENT: Mr Coli

FILE NUMBER: MLC 5650 of 2017

DATE DELIVERED: 16 June 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 16 June 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr D. McLeod

SOLICITOR FOR THE APPLICANT: Ebejer & Associates

THE RESPONDENT: No Appearance

Orders

1. That all extant applications be adjourned to the Senior Registrar’s Duty List at 10.00am on 18 July 2017.

2. That the husband personally attend at the adjourned hearing on 18 July 2017.

3. That the husband file and serve by 4 pm on 14 July 2017:

   (a)       Response to Initiating Application;

   (b)       Any affidavit upon which he seeks to rely; and

   (c)       Financial statement.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Adanti & Coli has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 5650 of 2017

Ms Adanti

Applicant

And

Mr Coli

Respondent

REASONS FOR JUDGMENT

1. This matter originally came before me on an urgent listing on 13 June 2017.  At that time, the husband had not been served with the Initiating Application filed by the wife on 9 June 2017 in which she sought, inter alia, orders that the husband be placed on the Airport Watch List and orders restraining the removal of the children from the Commonwealth of Australia.

2. The background to that application is that the parties were in a relationship.  They commenced cohabitation in 2007 and married in 2008.  Their separation occurred in July 2015. 

3. The wife has filed an affidavit on 9 June 2017 which sets out the circumstances of these parties since the time of separation. 

4. There are two children of the relationship, B, who was born in 2009 and is aged eight years and C, who was born in 2012 and is aged almost five years.

5. At the time of separation, the parties were moving between households in Australia and Country D, they having property and business interests in both countries.  The wife’s evidence is that the parties were living separated, under the one roof, in Country D until about July of 2016.  At that time, the husband vacated the former matrimonial home and left the children in the wife’s care.  He commenced a de facto relationship with his new partner at that time.

6. The wife alleges that she informed the respondent that she wished to reside in Australia with the children.  It would seem that there was a dispute between the parties with respect to that proposal.  The end result was that by December 2016, the wife returned to Australia with the parties’ oldest child, B, and they have been living together at a property in Suburb E since that time.  The parties’ younger child, C, remained in the husband’s care.  The wife alleges that this occurred due to the husband’s insistence that C remain with him in Country D.  The wife alleges that she has been subjected to abuse and has filed a Notice of Child Abuse,  or risk of Family Violence in conjunction with her other applications.

7. When the matter was last before me on 13 June 2017, as I have indicated, the husband had not been served.  I adjourned the matter over to this day to enable service to be effected.  At the time the application was made, the wife was uncertain as to whether or not the husband was, in fact, in Australia. 

8. The wife has filed an affidavit of attempted service by her solicitor, that affidavit having been filed on 15 June 2017.

9. That affidavit confirms, in paragraph 5, that whilst personal service was attempted the documents relied upon by the wife were emailed to the respondent at his email address. 

10. The respondent has communicated with the Court by letter dated16 September 2016.  Nonetheless, it is a document that was received within the Registry on 15 June 2017.  That letter indicates that the husband is currently in Country D, but that he will be returning to Australia on 13 July 2017 and is in a position to attend court at that time.

11. In those circumstances, I am satisfied that it is appropriate that this matter, particularly the interim parenting issues, be listed before the Senior Registrar on 18 July 2017.  I am satisfied that it is appropriate to make an order that the husband personally attend Court that day, so that he can answer the serious allegations that have been made by the wife.

12. Further, I am satisfied that by listing on that date the husband will have ample opportunity to engage lawyers in Australia, to communicate with them and to have material prepared on his behalf which can be sworn and filed upon his return to Australia.   

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 16 June 2017.

Associate: 

Date:  16 June 2017