Adanti and Coli (No 3)

[2017] FamCA 1151

FAMILY COURT OF AUSTRALIA

ADANTI & COLI (NO 3) [2017] FamCA 1151

FAMILY LAW – CHILDREN – Interim Orders – where one sibling is living in Australia and the other is living in Country D – where orders were made for the children’s and the father’s name to be placed on the Airport Watch List – orders made providing for the father to do all acts and things to return the child to Australia – orders made for the preparation of a s 11F report

Family Law Act 1975 (Cth)

APPLICANT: Ms Adanti

RESPONDENT: Mr Coli

FILE NUMBER: MLC 5650 of 2017

DATE DELIVERED: 18 July 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 18 July 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr McLeod

SOLICITOR FOR THE APPLICANT: Ebejer & Associates

COUNSEL FOR THE RESPONDENT: Ms Ngo

SOLICITOR FOR THE RESPONDENT: Nevett Ford

Orders

1. Until further order the respondent father MR COLI born … 1965 be and is hereby restrained from leaving the Commonwealth of Australia AND IT IS FURTHER ORDERED that the Australian Federal Police place his name on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain his name on the Airport Watch List until further order of the Court.

2. Until further order the father MR COLI born … 1965 and the mother MS ADANTI born … 1988 by themselves, their servants and/or agents, be and are hereby restrained from removing the children B born … 2009 (“B”) and C born … 2012 (“C”) from the Commonwealth of Australia AND IT IS FURTHER ORDERED 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.

3. As soon as practicable the Court forward a copy of this order to the Australian Federal Police.

4. The father do all acts and things to return the child C to the Commonwealth of Australia.

5. Until further order and upon the arrival of the child C in the Commonwealth of Australia she live with the father.

6. Pursuant to s 11F of the Family Law Act 1975 (Cth) the parties to the proceedings and the children the subject of the proceedings attend upon a family consultant at the Melbourne Registry of the Family Court of Australia on 25 July 2017 at the following times:

   a.   the applicant mother together with the child B born … 2009 at 9.15 am; and

   b.   the respondent father together with the child C born … 2012 at 11.00 am;

   for the purposes of a Children’s and Parents Issues Assessment and such assessment once completed be released to the parties.

7. For the purpose of completing the s 11F assessment the family consultant:

   a.   is permitted to inspect the Court file and read all documents filed in and related to this matter; and

   b.   is permitted to read any document produced on subpoena once permission to inspect has been granted to a party.

8. All extant applications be adjourned for further hearing to the Senior Registrar’s Duty List at 10.00 am on 31 July 2017.

9. The costs of both parties’ of this day be reserved.

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 (No. 3) 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 was originally listed for hearing in the Senior Registrar’s Duty List this day but, ultimately, listed before me due to his unavailability.  The matter comes before the Court by way of an Initiating Application filed by the mother on 9 June 2017, time being abridged for the hearing of paragraphs 3 and 4 of the interim orders sought by the mother before Johns J on 16 June 2017.  The mother, in paragraphs 3 and 4 of her application, seeks interim orders restraining the father from leaving the Commonwealth of Australia and requesting that his name be placed on the Airport Watch List and similar orders with respect to the two children of the marriage.

2. The mother was born in 1988 and is currently 29 years of age.  The father was born in 1965 which makes him 51 years of age.  According to the mother, the parties commenced a relationship and cohabitation in 2007 and were married in Victoria in 2008. They separated in July 2015. The children, the subject of this application, are B, born in 2009 (now eight years of age), and C, born in 2012 (now five years of age).  Both of the children were born in Australia and both have Australian passports, albeit that C’s Australian passport is due to expire on 25 July 2017.

3. The father is a permanent resident of Australia and the mother says he obtained permanent residency well before they commenced their relationship. The mother was granted permanent residency in Australia in early 2012.  It is the mother’s evidence that the father has one business in Country D and two businesses in Australia and, from 2007 to 2011, they lived mostly in Australia.  They own real property in Australia.  She further deposes that in 2011 the father started a new business in Country D and, after C was born in July 2012, the parties travelled and lived between Country D and Australia.

4. Following the parties’ separation the parties lived separately and apart under the one roof in Country D, the mother says until July 2016, at which time the father vacated the matrimonial home leaving the children in her care and commenced cohabitation with his new partner. The mother asserts that the father has remarried in Country D notwithstanding, she says, that she and the father are not divorced. There is some dispute as to the history of the relationship and the circumstances of that relationship and the circumstances of separation.  The evidence has not been tested and I am not in a position to make any findings of fact however for the purposes of the matters I must determine today, it is not necessary for me to do so.  There is also a dispute as to how it came about that the older child came to Australia to live with the mother and the younger child remained in Country D living with the father. 

5. The mother, in her Initiating Application filed 9 June 2017, seeks both interim and final parenting orders that both children live with her. The father, in his Response to Initiating Application, filed on 17 July 2017, did not particularise the final orders he seeks but sought orders restraining the child C from being removed from Country D and the child B from being removed from Australia on the basis that he would be seeking orders that both children should live with him.  In essence, it is the mother’s case that she has no contact with the child C, that the father will not bring the child to Australia and that the only way the child is likely to be brought to Australia is if the father is restrained from leaving the Commonwealth of Australia. It is the father’s case that such an order is not necessary. 

6. When the matter came on for hearing before Johns J on 16 June 2017, the father was in Country D and sought an adjournment of the matter.  I have been told by the father’s solicitor today that the father arrived in Australia from Country D on 13 July 2017.  Although Johns J did accede to the application for an adjournment, she also made orders requiring the father to personally attend the hearing this day and required him to file and serve, by 4.00 pm on 14 July 2017, a Response to Initiating Application, any affidavit upon which he seeks to rely and a financial statement. Notwithstanding those orders, those documents were not filed until 5.30 pm yesterday (17 July 2017). No explanation is given and it is fair to say that the father has had ample time in which to obtain legal advice and to file documents in accordance with those orders. The father returned to Australia in anticipation of this hearing without the child in the knowledge that the mother was seeking orders for the child to be brought to Australia.  

7. Although it is submitted by the father’s solicitor that he does not need to be restrained from leaving the Commonwealth and it is not necessary to have his name placed on the Airport Watch List, it now his case that he will do what is required to bring the child C to Australia for the purposes of the parties and children attending upon a family consultant for the purposes of a s 11F report. I have reservations about that.

8. The father, in his Response, sought interim orders that he and the mother be restrained from removing or causing the child, C to be removed from Country D. He also sought an order that the Australian Federal Police notify the Country D National Police to give effect to this order by placing C on the Watch List in force at all points of arrival and departure by air or sea in Country D and maintain her name on the Watch List until the Court orders its removal.  Firstly, I do not know whether the Country D Government even maintains a Watch List and certainly query whether this Court has any jurisdiction to make the orders that are sought requesting action to be taken by the Country D National Police. The father also sought an order that he and the mother be restrained from removing the child, B, from the Commonwealth of Australia. 

9. Although the father does not specify the final parenting orders that he seeks, it was submitted on his behalf, that, albeit he is seeking orders with respect to C not being removed from Country D, he does not otherwise seek parenting orders with respect to C. The father does seek final parenting orders with respect to the child B.  The difficulty with the orders sought by the father is that what he appears to be saying is that he wants to invoke the jurisdiction of this Court with respect to the child B, but will not be bound by this Court’s jurisdiction with respect to the child C.

10. It is difficult to see, if the Court were to accede to the father’s application, how a proper assessment as to the welfare of the child B, in relation to whom he does seek orders, could be made in the absence of an assessment of the child, C.  They are siblings.  They have been split.  There is no way of knowing, and any family consultant assessing the matter, would not be able to assess what the relationship is between the two children. More importantly, what the father seems to be seeking to do is to hold the Court to ransom, making the orders he seeks without being bound by any orders with respect to the application made by the mother.  It is far from satisfactory. 

11. Although the father amended his proposal to provide for the return of the child to Australia, it is also fair to say that he seemed to be placing a lot of barriers in the way of that occurring. In my view, potentially unnecessary barriers.  However, until the evidence is tested, I am not in a position to make findings in relation to whether that is the case.   

12. Firstly, there is the issue of the child’s passport.  It appears the child has an Australian passport that is valid until 25 July 2017 and, on that basis, there would seem to be no reason why the child could not travel to Australia within that timeframe.  The father also says that there is no one with a visa who could bring the child to Australia if he is not permitted to leave the Commonwealth of Australia.  However, it appears that his mother, who is in Court with him today, is an Australian citizen and could travel to Country D to collect the child. Although it was then submitted that she is not well known to the child, when that question was asked directly of her and she was asked about how often she had seen the child, she said, quite clearly, in the body of the Court, “many times”. Although she then attempted to resile from that answer, her answer was clear. 

13. I am not, in any way, determining where either B or C should be living. But in circumstances where the father seeks orders of this Court in relation to the child B, he seeks orders with respect to property settlement, albeit they are not particularised, where both children were born in Australia and are Australian citizens, where both the father and the mother are Australian residents and own property and operate businesses in Australia, even leaving aside the practicalities of how the Court could determine what is in the children’s best interests when only one child is in the jurisdiction, it seems to me that the appropriate course is for me to make the orders sought by the mother restraining the father from leaving the Commonwealth of Australia. That order will be until further order. The parties can attend for the purposes of the preparation of a section 11F report on 25 July 2017 and there can be a hearing on 31 July 2017 to determine at least, in the interim, where the children should be living.

14. I also propose to make an order restraining both parties from removing either of the children from the Commonwealth of Australia. Again, that will be an order until further order and that matter can be similarly reviewed, subject to whatever orders are made in relation to the children and where they are to live in the interim. 

15. The father does raise what he says will be the interruption to the child’s schooling and says that she is settled in Country D.  Whilst it would appear that there will be some interruption in the child’s schooling, that is one of the matters that can be considered at the hearing on 31 July 2017.  Whilst that may occur, there are also possibly some benefits for the child in travelling to Australia.  Not least being, that she may have an opportunity to spend time with her mother and with her brother. 

16. In terms of her being settled in Country D, she is settled in Country D without her father and if she is brought to Australia she will be with her father.  There is no dispute that she is to live with her father upon her arrival in Australia.  Where she is to live thereafter can be the subject of submissions and the determination of the Court on 31 July 2017. 

17. So in all the circumstances, I propose to accede to the application of the mother with respect to the father being restrained from leaving the Commonwealth of Australia and I propose to restrain both parties from removing the children from the Commonwealth of Australia.  Both the father’s name and the name of the children will be placed on the Airport Watch List until further order.  And I propose that upon the child’s arrival in Australia, and until the further hearing, she reside with the father.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 18 July 2017

Associate: 

Date:  18 July 2017