Ballard & Kellam
[2023] FedCFamC1F 987
•17 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Ballard & Kellam [2023] FedCFamC1F 987
File number(s): SYC 8664 of 2023 Judgment of: CHRISTIE J Date of judgment: 17 November 2023 Catchwords: FAMILY LAW – EX PARTE APPLICATION – Interim parenting orders – Where the applicant and respondent are not in the same country as the subject children – Where the applicant cannot return the children to Australia without the respondent’s written consent –Where the respondent has not been contactable by the applicant – Hague non‑Convention country – Where the children are habitually resident to Australia – Where the children are not in the Australia but there is jurisdiction – Family violence – Sole parental responsibility order – Best interests of the children - Interim injunctions Legislation: Family Law Act1975 (Cth) ss 69E, 111CD
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 5.11, 5.12
Convention on Jurisdiction Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (1996)
Cases cited: Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346
LK v Director General, Department of Community Services (2009) 237 CLR 582; [2009] HCA 9
Division: Division 1 First Instance Number of paragraphs: 28 Date of hearing: 17 November 2023 Place: Sydney Solicitor for the Applicant Legal Aid NSW The Respondent No appearance ORDERS
SYC 8664 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS BALLARD
Applicant
AND: MR KELLAM
Respondent
ORDER MADE BY:
CHRISTIE J
DATE OF ORDER:
17 NOVEMBER 2023
THE COURT ORDERS THAT:
1.Until further order the respondent father, MR KELLAM (born in 1978), be restrained from leaving the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the respondent’s name on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the respondent’s name on the Watchlist until the Court orders its removal.
2.Until further order the respondent father forthwith surrender all passports or travel documents that he currently has in his possession, issued in his name, the name of the mother Ms Ballard, or the names of either of the children, X or Y, to the Registrar of the Federal Circuit and Family Court of Australia (Division 1), and the Registrar is requested to provide a photocopy of the mother and children’s passports or travel documents upon the request of the mother or her solicitor.
3.The children X born in 2015 and Y born in 2019 are declared to be habitually resident in Australia.
4.Pursuant to s 111CD(1)(e) of the Family Law Act 1975 (Cth) this Court has jurisdiction to take Commonwealth personal protection measures in relation to the children X born in 2015 and Y born in 2019, including making parenting orders pursuant to s 65D of the Family Law Act 1975 (Cth).
5.Until further order, the mother have sole parental responsibility for X born in 2015 and Y born in 2019.
6.Until further order, the children live with the mother in Australia.
7.The respondent father do all things necessary to facilitate the immediate return of X and Y to the Commonwealth of Australia including but not limited to:
(a)Contacting the Country B Consulate in Sydney by telephone between the hours of 9.00 am and 3.00 pm within three (3) business days of becoming aware of these orders, to make an appointment on or before 24 November 2023 to execute a Power of Attorney, authorising the mother to depart Country B with the children and return the children to Australia.
(b)Making an enquiry of the Country B Consulate in Sydney as to what documents, if any, are required in order to execute a Power of Attorney authorising the mother to depart Country B with the children and return the children to Australia.
(c)Within 24 hours of making the appointment, advising the solicitor for the mother as to the time and date of the appointment, and of any documents or information that may be required by the Country B Consulate in Sydney that he does not have in his possession.
(d)Providing the mother or the solicitor for the mother with the duly executed Power of Attorney by 5.00 pm on the same day the document is executed.
8.Upon notification to the Australian Federal Police by the mother or her solicitor that the children X and Y have returned to Australia, and until further order, each of the mother and father, their servants and/or agents be and are each hereby restrained from removing or attempting to remove or causing or permitting the removal or attempted removal of the children X and Y from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of the children on the Airport Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Airport Watchlist unless and until the Court orders their removal.
9.The mother's solicitor is to provide to the father written confirmation that the children have returned to the Commonwealth of Australia, within three (3) business days of their return.
10.Until further order, the father is restrained from entering the international terminal of Sydney Airport until such time as he has been notified in writing that the children have returned to the Commonwealth of Australia.
11.Until further order, the father is restrained from entering or coming within 100 metres of any school, preschool or other educational institution attended by either of the children, without the mother’s prior written consent.
12.The mother cause a sealed copy of the following documents to be served upon the father as soon as practicable:
(a)Any orders in this matter;
(b)The Initiating Application;
(c)The mother's affidavit affirmed 15 November 2023;
(d)The mother's Notice of Risk signed 15 November 2023;
(e)The affidavit of non-filing certificate signed 15 November 2023; and
(f)Genuine Steps Certificate signed 15 November 2023.
13.The father file and serve a Notice of Address for Service as soon as practicable after service upon him of these orders.
14.The father is to file and serve any Response and affidavit in response to the evidence of the mother and in support of any orders that he seeks within three (3) business days of being served with the documents referred to in Order 12.
15.The mother have leave to issue short service subpoenas to the Department of Home Affairs and D School.
16.The matter is adjourned to 9.30 am on 24 November 2023.
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 a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
CHRISTIE J
This is an ex parte application for parenting orders in respect of the children X born 2015 and Y born 2019 (collectively “the children”).
The applicant, Ms Ballard, is the children’s mother and the respondent to the application is Mr Kellam, who is the children’s father. The application has not been served on the respondent for reasons which are described below and accordingly is being dealt with in the absence of the respondent.
THE LAW
Applications without notice are dealt with pursuant to r 5.11 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) which provides as follows:
5.11 Applications without notice
An applicant seeking that an interlocutory order be made without notice to the respondent must:
(a) satisfy the court about why:
(i)shortening the time for service of the application and the fixing of an early date for hearing after service would not be more appropriate; and
(ii) an order should be made without notice to the other party; and
(b)in an affidavit or orally, with the court’s permission, make full and frank disclosure of all the facts relevant to the application, including the following:
(i)whether there is a history or allegation of child abuse or family violence between the parties;
(ii)whether there have been any previous proceedings between the parties and, if so, the nature of the proceedings;
(iii) the particulars of any orders currently in force between the parties;
(iv) whether there has been a breach of a previous order by either party to the proceeding;
(v)whether the respondent or the respondent’s lawyer has been told of the intention to make the application;
(vi)whether there is likely to be any hardship, danger or prejudice to the respondent, a child or a third party if the order is made;
(vii)the capacity of the applicant to give an undertaking as to damages;
(viii)the nature of the damage or harm that may result if the order is not made;
(ix) why the order must be urgently made;
(x) the last known address or address for service of the other party.
As a consequence of the matter being dealt with in the absence of the respondent it is necessary for the orders which I make to comply with r 5.12 of the Rules and accordingly the matter will be adjourned to allow the respondent to be heard on the substantive application.
THE MOTHER’S EVIDENCE
The children are not currently present in Australia, although I accept for the purposes of s 69E of the Family Law Act1975 (Cth) (“the Act”) that both of the children’s parents are presently in Australia at the time of the making of the application. Accordingly, I find that I have jurisdiction to hear and consider the urgent parenting application notwithstanding the fact that the children are presently in the care of the mother’s extended family in Country B.
By way of background, the mother’s affidavit material suggests that the parties’ older child, X, was born after the mother arrived in Australia in 2014. The mother’s affidavit evidence suggests that from the time of the birth of X to the present she has provided the primary care for the two children of the relationship whilst their father has been primarily responsible for the children’s financial support.
The mother indicated in her affidavit material that the relationship between the parties was originally not characterised by violence although she says that the father would get angry. However, after she had been married for approximately three years the mother said that the relationship was characterised by violence perpetrated against her by the father and gives specific examples:
(a)The mother says that the father was strong and athletic and she was afraid of him.
(b)The mother says in her affidavit material that she felt as though she could not leave the house and the father explicitly said to her words to the effect “If you leave the house I will kill you”.
(c)The mother says that in 2020 the father became angry and pushed her to the tiled floor where she was injured, bleeding and shortly after the incident felt pain in her knee.
(d)The mother says that sometime between mid-2020 and early 2021 she was the subject of a serious assault by the father. The mother says he pulled a necklace, which she had around her neck, causing the necklace to break and then he put both of his hands around her neck. The mother says she struggled to breathe and the struggle lasted approximately half a minute and that the entirety of the assault was about two-three minutes. The mother says X watched the incident. The mother did not report this assault to authorities.
The mother says that in the middle of 2021 the father told her to leave the parties’ shared property with the children. The mother says she did indeed leave and caught the train from Suburb E to Suburb F to see if she could get assistance and get out of the house until the father had calmed down. The mother was referred to a domestic violence organisation in Suburb C and made an appointment to obtain assistance. After returning to the parties’ home, the mother attended the appointment and received advice that she could take the children to a women’s refuge. The mother did not follow up on the advice she received at that appointment as she was concerned about the potential impact on her upcoming citizenship test.
The mother says that in early 2023 the father indicated that the parties should travel with the children to Country B to visit family for a month. In early 2023 they left Australia arriving in City G the following day. The mother says, after their arrival in City G, the father arranged a taxi from the airport, dropped the mother and children at the maternal family’s home and she has not heard from the father since. The mother says that the father retained the children’s passports, the original certificate registering X’s birth in Country B and the mother’s Country B identification. The mother retained her Australian passport.
Between early 2023 and mid-2023 the mother made efforts to contact the father directly through various mobile message systems and telephone calls. The mother also made attempts to contact members of the father’s family via messaging apps and telephone calls.
In mid-2023 the mother contacted the Australian Embassy in Country B and booked an appointment with them. Later that month, the father’s sister, Ms H, visited the mother’s family home in City G and told her that the father had returned to Australia leaving the passports of the children with her. The mother requested the return of the passports and records in her affidavit that Ms H said to her “I will not give these passports to you and if you ask you might not see you daughters again in your life. If you ever ask for these passports again, we will put bullets in their ([X] and [Y]) heads”.
The mother says she is fearful in respect of these threats and understands that the father’s family would have access to weapons.
The mother attended her appointment with the Australian Embassy in City G in mid-2023 and as a consequence of interventions of the Australian Embassy she has managed to obtain emergency travel documentation for the children.
The mother however understands that she cannot leave Country B without written consent from the father and if the mother attempted to leave Country B with the children without this consent she could be arrested. Accordingly, the mother returned to Australia and left the children in the care of her mother aged 50, sister aged 27, brother aged 25 and grandmother in her late sixties.
The mother has been in contact with the Country B consulate in Australia who has confirmed that she requires the father’s consent in writing to remove the children to Australia.
The mother is currently being supported by and obtained housing from J Organisation. The mother has booked tickets to travel to Country B in late 2023 at which time she hopes to return to Australia with the children.
I am satisfied that circumstances of urgency have been established. I am satisfied that it is appropriate to make orders in the absence of the respondent although I will bring the matter back before me to allow the respondent to provide evidence in response to the mother’s application. A copy of these orders and the material filed on behalf of the applicant should be served on the respondent and the respondent directed to file any material in response.
CONSIDERATION
These are interim parenting proceedings. Because they have not been served there is no contradictor.
As discussed above this matter is being heard without notice to the respondent. I am satisfied that is appropriate because of the allegations of violence, the possibility of the father taking pre-emptive action if the proceedings came to his attention and the urgency of the situation where children are separated from both parents.
I am satisfied I have jurisdiction to hear and determine the matter in reliance upon s 69E(c) of the Act. I am satisfied that, notwithstanding the children are currently in Country B, their removal from what their mother believed was a holiday coupled with the fact that they are living temporarily with extended family and one of them has no access to social services, all support the conclusion that they are habitually resident in Australia where until early 2023 they were attending school and child care: LK v Director General, Department of Community Services (2009) 237 CLR 582.
Country B is not a party to the Convention on Jurisdiction Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (1996) and so for the purpose of determining whether I have jurisdiction Country B is a non-Convention country and I approach this matter as one in which the children are present in a non-Convention country. Because I am satisfied the children are habitually resident in Australia, I find I have jurisdiction pursuant to s 111CD(1)(e) of the Act.
I am being asked to make interim parenting orders. I have to be satisfied that the orders are in the best interests of the children.
Consistent with the principles in Goode & Goode (2006) FLC 93-286, I will rely on what appear to be uncontroversial facts:
(a)Both parents would appear to be in Australia;
(b)The children are in Country B;
(c)The older school aged child is not attending school;
(d)The father willingly left the children in the sole care of the mother;
(e)The father’s family have engaged with the mother, but the father has not;
(f)The mother wants to facilitate the children’s return to Australia;
(g)The mother says she requires the father’s written consent to remove the children from Country B.
The mother seeks an interim order for sole parental responsibility. I find that the presumption in favour of equal shared parental responsibility is rebutted by the mother’s evidence concerning family violence. Further, I find that it would be in the best interests of these children that the mother have sole parental responsibility on an interim basis to assist her in facilitating the children’s return to their place of habitual residence.
The mother seeks an order that the children live with her. She has given a history of their care from birth. That evidence coupled with the fact that the father must have been content to leave the children in her care in Country B are sufficient on an interim basis to make the order as sought.
The mother otherwise seeks orders which facilitate the children’s return to Australia. They require that the father take positive action to give consent to the children’s removal from Country B. Given they are currently separated from both parents and the stability and structure of school, friends and childcare I find that the father should be required to take the action necessary to secure their prompt return.
The mother also seeks injunctions to prevent the father approaching to remove the children. This is a precautionary measure and given the evidence (albeit untested and unanswered) of the mother, I find that the injunctions sought are appropriate.
The father will be given time to file material and the matter will be relisted at 9.30 am on 24 November 2023.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated: 17 November 2023
0
1
3