Basken and Basken

[2007] FamCA 1291

FAMILY COURT OF AUSTRALIA

BASKEN & BASKEN [2007] FamCA 1291

FAMILY LAW – I NJUNCTION – child out of Australia but return anticipated

Family Law Act 1975 (Cth)

APPLICANT: Mr Basken

RESPONDENT: Mrs Basken

FILE NUMBER: MLC 2453 of 2007

DATE DELIVERED: 15 October 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 15 October 2007

REPRESENTATION

APPLICANT : In person

Orders

1. That all rules be dispensed with to enable this application to proceed ex-parte this day. 

2. That until further order the husband and wife by themselves, their servants or agents be and are each hereby restrained from removing, attempting to remove, or causing or permitting the removal or attempted removal of the child N born … May, 2002 from the Commonwealth of Australia  AND IT IS FURTHER ORDERED  that the Australian Federal Police place the name of N on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch list until further order of the Court. 

3. That as soon as practicable the Registry Manager serve a sealed copy of these orders by facsimile and ordinary prepaid post upon the proper officer of the Australian Federal Police at Melbourne,  AND IT IS REQUESTED  that Australian Federal Police give force and effect to this order. 

4. That as soon as practicable the husband serve the wife with the following documents :

   (a)initiating application filed 16 August, 2007;

   (b)affidavit sworn by the husband on 16 August, 2007;

   (c)affidavit sworn by the husband on 23 August, 2007;  and

   (d)sealed copy of this order.

5. That in the event the wife is in Australia, service be effected personally, pursuant to the Family Court Rules 2004 and in the event she remains in Sweden or other place outside Australia, and the husband ascertains an email address for her, service may be effected by attaching scanned copies of the documents described in paragraph (4) hereof to an email addressed to her. 

6. That the initiating application filed 16 August, 2007 be otherwise struck out with a right of reinstatement on application in writing made to the Client Services Manager in the Melbourne registry of this court.

7. That pursuant to s.65DA(2) and s.62B of the Family Law Act1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

8. That the reasons for judgment this day be transcribed and that copies be made available to the husband and, in the event she files a notice of address for service, to the wife.

9. That the preparation of these orders be expedited forthwith.

IT IS NOTED that publication of this judgment under the pseudonym Basken & Basken is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 2453 of 2007

MR BASKEN  

Applicant

And

MRS BASKEN  

Respondent

REASONS FOR JUDGMENT

1. Before the court is an application, filed on 16 August 2007, by Mr Basken, who is the father of the child N born in May 2002. The child's mother is Mrs Basken. The parties were married in August 1999, separated in January 2002 and were divorced in May 2007.

2. I have before me two affidavits sworn by the father, one on 16 August and one on 23 August.  The application is brought ex parte as the mother is not in Australia; the father believes her to be in Sweden, although her specific whereabouts are not known.

3. The father's evidence is that after separation he had regular contact with the child. He has made it very clear that the relationship between him and the mother was courteous, and they co-operated to ensure he spend time with the child. 

4. In 2006 the mother sought to take the child for a six‑weeks overseas trip to Egypt, and the father agreed. The mother and the child left Australia on or about 24 October; they were to return on 6 December 2006.  In late November, the mother requested an extension until late January 2007, to which the father agreed. In mid‑January the mother sought to extend the stay to late February 2007, and again the father agreed, although by then concerned about the length of the period the child would be away. In mid‑February, the mother asked to extend the stay to early November 2007, more than a year after her original departure date from Australia with the child. The father did not agree to that extension. 

5. There has been subsequent communication between the mother and father. On 10 August 2007, the mother indicated to the father that she proposed returning to Australia in November but would then seek to take the child to Egypt permanently.  He made it clear that was not an order to which he would agree. 

6. What the father seeks today is an order to ensure that after the child’s return to Australia, the mother be restrained from again removing him from the Commonwealth, without an order of the court.  He does not at this stage seek any specific orders in relation to the child’s residence, or the time he is to spend with the child, advising that he and the child's mother have always been able to reach amicable agreement when they are in the same jurisdiction.  The problem he faces is that, at the moment, they are not in the same jurisdiction.

7. I do propose to make the order sought.  It cannot be prejudicial to the mother or the child and I am thus not concerned about making the order ex parte. I will then strike out the father’s application, with a right of reinstatement. These reasons for judgment will be on the file. If the father needs to reinstate the application to seek additional orders, he can do so, on application to the listing staff.  If he and the mother do sort things out, it would only be necessary to file an application for orders to be made by consent, and (if agreed) lifting the injunction in respect of the child’s removal from Australia. 

I certify that the preceding 7 paragraphs are a true copy of the reasons for judgment herein of the Honourable Justice Brown AM.

Associate

15 October 2007