Ahuja & Pandher
[2022] FedCFamC1F 473
Federal Circuit and Family Court of Australia
(DIVISION 1)
Ahuja & Pandher [2022] FedCFamC1F 473
File number: CAC 1246 of 2022 Judgment of: GILL J Date of judgment: 4 July 2022 Catchwords: FAMILY LAW – Suite of orders sought by applicant mother on ex-parte basis – Alleged unilateral decision by father to retain child in Country B – Child currently living in Country B with paternal grandparents – Mother seeking return of child from Country B to Australia – Mother alleges history of family violence during relationship with father and has concerns that he will leave Australia upon notice of proceedings – Restraint placed upon father to prevent his leaving Australia – Father placed on watch list and to surrender his passport. Legislation: Family Law Act 1975 (Cth) s 68B
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Pt 2.6 and r 5.11
Division: Division 1 First Instance Number of paragraphs: 13 Date of hearing: 4 July 2022 Place: Canberra Counsel for the Applicant: Mr Howard Solicitor for the Applicant: Parker Coles Curtis Solicitor for the Respondent: No appearance ORDERS
CAC 1246 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS AHUJA
Applicant
AND: MR PANDHER
Respondent
order made by:
GILL J
DATE OF ORDER:
4 July 2022
THE COURT ORDERS THAT:
1.I grant leave to the mother to proceed on an ex-parte basis at first instance.
2.Pursuant to section 68B of Family Law Act 1975 (Cth), the respondent father, Mr Pandher born in 1978, is restrained from departing the Commonwealth of Australia.
3.It is requested that the Australian Federal Police give effect to this order by placing the name of the said Mr Pandher, born in 1978, on the Family Law Watchlist enforced at all points of arrival and departure in Australia, and maintain his name on the watch list for a period of 12 months or until the Court orders its removal.
4.Mr Pandher shall forthwith deliver any passport in his name to the closest registry of the Federal Circuit and Family Court of Australia to be held there pending further order of the Court.
5.Mr Pandher is restrained from using the documents in these proceedings for any other purpose than these proceedings without first obtaining the leave of the Court.
6.The proceedings are adjourned for further hearing to 27 July 2022 at 2:00pm and it is directed that, unless directed otherwise on application by parties, such hearing is to be on an in person basis.
7.Any party may seek the urgent relisting of these proceedings.
8.Without derogating from the obligation as to service contained in the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), the mother should cause all filed documents, these orders and judgment to be sent to Mr Pandher via email.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Ahuja & Pandher is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX-TEMPORE REASONS FOR JUDGMENT
GILL J:
In the matter of Ahuja and Pandher, the mother has by an Initiating Application sought a suite of orders on an ex-parte without notice basis, directed ultimately towards securing the return of her daughter X from Country B, where the mother says that she has been since January 2020 at the behest of the respondent father.
She says that while the travel was practically consented to by her, the retention was purportedly not. It may be noted that the mother and father are both citizens of Australia and Country B, and the mother asserts that she has the subject of serious family violence and has been otherwise unable, despite her efforts, to secure X’s return.
The mother expresses fears that should the father be on notice of these proceedings he may defeat these proceedings by departing the Commonwealth of Australia.
Rule 5.11 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) deals with applications without notice. I need to be satisfied that short service and an early return date is insufficient. The issue that arises is that the service of this application places the father on notice of the proceedings and enervates the potential for him to leave the jurisdiction. The issue is then the capacity of the court to make effective orders for the best interests of X, who is currently separated it seems from both her parents under an alleged unilateral arrangement by the father.
Given that X is in Country B, which is a non-Hague country, consideration of and making orders in her best interests are reliant upon there being an effective mechanism to enforce those, which in turn requires the father’s presence in Australia. That capacity disappears should the father leave the country.
It may be observed that there is potential prejudice to the father in making ex-parte orders against him, including the defeat of an intention on his part to leave the country, where the underlying intention has nothing to do with an attempt to defeat the jurisdiction of this Court.
It may be observed that it is fundamental that parties have the opportunity to be heard prior to orders being made that impact them. The orders here have the capacity to seriously impact both the father and X, including the uprooting of X from the currently, apparently long standing care arrangements. It should be noted that the mother does not press today that the orders be made for X’s return prior to the father having the opportunity to be heard.
It may be that orders for X’s return are in her best interest, but such is best and appropriately determined on also hearing from the father.
Of the suite of orders sought by the mother, only one issue requires resolution on a temporary ex-parte basis and that is the curtailing of the father’s capacity to leave the country prior to a return date where he might be heard. Rather than make the suite of orders as sought, a restraint will be made pursuant to s 68B of the Family Law Act 1975 (Cth), as is appropriate for the welfare of the child in that the means to determine the welfare of the child are secured by prevention of the father’s departure pending being heard, and further by adding him to the watch list and directing that he surrenders his passports.
Any other substantive aspects should be adjourned and there should be liberty to relist the matter at short notice both to ensure that the orders are effective and to maximise the opportunity of the father to avoid any unwarranted deleterious effects of the ex-parte hearing of this matter.
Whilst the mother further sought that video calls be resumed between herself and X, this is an issue that should be reserved in order to enable the father to be heard. The mother also sought the redaction of annexure B of her affidavit filed 30 June 2022 on the basis that this may be used against her in the legal system in Country B. Such an order will not be made as the father should be on proper notice of the material that is relied upon, however it is appropriate that there be a restraint on the further use of such material without first obtaining the leave of the Court and such restraint will be made.
The mother also sought amelioration of her obligations regarding service under the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), and sought that she be permitted to serve the father via email and otherwise excused from the personal service requirements as set out in Part 2.6 of the Rules. That is not a step that I am prepared to take.
It is essential that the father be properly put on notice of these proceedings, and there is not as yet sufficient warrant to depart from the personal service requirements as set out at Part 2.6. That of course does not prevent the mother from sending the documents by email to the father, and I will direct that she does so, and note that the current position where she is not excused from the personal service requirement may be ameliorated by me being persuaded that in any event the father has come to be on notice of these proceedings.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 5 July 2022
0
0
0