Bellanger & Wemble (No 2)
[2024] FedCFamC2F 150
•2 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Bellanger & Wemble (No 2) [2024] FedCFamC2F 150
File number(s): MLC 5456 of 2023 Judgment of: JUDGE O'SHANNESSY Date of judgment: 2 February 2024 Catchwords: FAMILY LAW – ex parte watchlist order review – urgent return after ex parte orders were made previously – no appearance by or on behalf of the first respondent – where the first respondent is in Country D – where the children of the proceeding are detained in Country D – the second respondent appearing in person – the second respondent being served previous ex parte orders on short notice – the second respondent seeking an adjournment – adjournment granted Cases cited: Bellanger & Wemble [2023] FedCFamC2F 1246 Legislation: Family Law Act 1975 (Cth) Part VII Division: Division 2 Family Law Number of paragraphs: 15 Date of hearing: 2 February 2024 Place: Melbourne Solicitor for the Applicant: Sunshine Lawyers The First Respondent: No appearance Solicitor for the Second Respondent: Ms Videion ORDERS
MLC 5456 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS BELLANGER
Applicant
AND: MR WEMBLE
First Respondent
MS PAIGE
Second Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
2 FEBRUARY 2024
THE COURT ORDERS THAT:
1.The matter be adjourned to 3 May 2024 at 10.00am for a Defended Hearing at the Federal Circuit and Family Court of Australia at Melbourne.
2.The Solicitor for the Applicant do all acts and things necessary to serve a copy of these Orders via email to the First Respondent and to communicate the existence of these Orders via telephone.
3.The Second Respondent do all acts and things necessary to use any line of communication with the First Respondent as is available to her to advise him of these sealed Orders and of the next Court date.
4.The Second Respondent is to file such affidavit or any other documents of any evidence she wishes to rely upon and Orders she seeks by no later than 4.00pm on Friday, 8 March 2024.
5.The Applicant Mother be and is entitled to rely upon material that has been previously filed.
AND THE COURT NOTES THAT:
A.The purpose of the matter returning in May is to allow the Second Respondent to file and serve the relevant Trial material and for the Court to then reconsider the current Watchlist Order that is in place against the Second Respondent.
B.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
C.Affected unrepresented parties may apply to the court and then to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.
D.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
E.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
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).
REASONS FOR EX TEMPORE JUDGMENT
These are the settled reasons of a judgment delivered ex tempore. These reasons were delivered orally. These settled reasons have been corrected from the transcript where appropriate to correct grammatical errors, to add citations and passages of authorities, and to attempt to make the orally delivered reasons easier to read. The substance is unchanged.
These are the second reasons delivered in the matter of Bellanger & Wemble & Paige.
The matter of Bellanger & Wemble & Paige comes before me on the urgent return to the Court after an ex parte order was made on 23 January 2024. The ex parte order was made on the application of the Solicitor for the Mother who informed the Court that it was believed that the Second Respondent, Ms Paige, had returned to Australia, and it was feared that she would depart again if she was pressed to explain the welfare or whereabouts of the subject children.
I refer and repeat by way of background a summary of the settled reasons contained in the anonymised version of 18 September 2023; (Bellanger & Wemble [2023] FedCFamC2F 1246)
…
3The mother, Ms Bellanger (‘the Mother’), who is 31 years of age, and the father, Mr Wemble (‘the Father’), who is 36 years of age, commenced living together in or about 2010 and married in 2011. They separated in November 2014. By that time, they had two children. They divorced, according to the law of Country D, in 2019. Final parenting orders were made in this court on 16 August 2021 for the parents to have equal shared parental responsibility but for Ms Bellanger to have sole parental responsibility for the day to day decision making of the children and for them to live with her, with provisions for spending time and communicating with Mr Wemble.
4In proceedings before me today, the children’s mother, Ms Bellanger, seeks a recovery order issued in the usual terms for the delivery up of the children to her.
5By way of background, the Mother alleges that she took the children to Country D to visit her father in late 2021 and that Mr Wemble and his mother, the Second Respondent, Ms Paige, also went to the same place in Country D at that time. She says that Mr Wemble initiated parenting proceedings in Country D and that the matter finalised in 2022 with the Court recognising the final orders of this court made on 16 August 2021. She says that shortly after that, Mr Wemble had her father arrested in proceedings relating to repayment. She says that she and her family, including the children, went to a hearing in early 2023 relating to that matter and while there, Mr Wemble, Ms Paige (the Father’s mother) and a group of their supporters beat her up and took the children away in a motor vehicle, and that she has not seen them since and has only spoken to them once since then. She says that Mr Wemble and Ms Paige are keeping the children in City B, a city in C State in Country D. Ms Bellanger is now in Country E, and is seeking for the children to be either taken back to Australia or recovered to her in Country E, where she says she will organise for them to return to Australia. The parents and children are Australian citizens.
…
After Orders were made on 23 January 2024, those orders and other documents were served on Ms Paige (arranged by the Mother’s solicitor at very short notice) and I am very grateful to her for going to the trouble to comply with my order that she attend at short notice. Ms Paige attended this morning at 10 o’clock. Mr Monoah, the solicitor for the Mother was also present in Court.
A great bulk of the day has been taken up to allow for Ms Paige to attend upon obtaining the assistance of the duty lawyer, and I am very grateful for the assistance not only to Ms Paige but to the Court for the representation in these urgent circumstances that has occurred.
The solicitor (the duty solicitor) for Ms Paige has made application today that the watch list order be removed or revoked this day. The grounds that were put in support of that was that it was either recognised or suspected that the orders of 23 January 2024 were a “carrot-and-stick” type approach, but it was submitted that Ms Paige had no sway over her son or ability to persuade him to return the children to their Mother’s care or to Australia. It was put by the duty lawyer that Ms Paige had travelled twice to Country D over recent time. This included for health reasons, and for her daughter’s wedding.
It is put that the Court should accept that it is inevitable she has cultural and family connections to Country D, and would wish to travel there in the future. I accept that she would have strong family and cultural reasons to wish to travel to Country D. The watch list order that was made was made for a period of two years. That period of two years is not fixed. The requirements of the Australian Federal Police and the Border Force authorities require there to be a timeframe for an order.
Though not expressed to be until further order, the concept of the matter returning here at 10 am on 2 February 2024 carried within it the implication that that order is to be reviewed today on 2 February 2024 and if not then, as soon as possible.
Ms Videion, the solicitor for Ms Paige, has pressed that the proceedings be adjourned to a timeframe to allow 35 days for Ms Paige to file and serve her account of events on affidavit. Ms Videion points to the difficulty in finding a solicitor who would be able to act at short notice, and I note that Ms Paige requires the assistance of an interpreter, and hence the solicitor will need those facilities as well.
I am satisfied that Ms Videion’s application for the Mother to have further time to respond to the broad range of matters that arise in the proceedings is a fair request. These issues that I raise with Ms Paige include:
·Her explanation for her failure to participate in the proceedings on 18 June 2023; and
·Her role in the children’s abduction from the Mother on or about early 2022; and
·Her communication with her son about the Court orders and the reasons; and
·Her own time with an interaction with the children in the meantime; and
·Her knowledge or explanation about the allegation that there has been no communication between the Mother and the children since some point in 2022.
Because of the explanations that I would expect, Ms Paige may well need the assistance of legal advice as to what her rights are. I will not make an order as to what her affidavit should contain, but will leave that to her own decision, including whether or not assisted by legal advice.
I note that Ms Paige does not have any plans to immediately travel to Country D. Balancing the risk of harm to the children’s welfare including the risk that their continued detention in Country D without time or communication with their Mother as well as balancing the immediate prejudice to Ms Paige of the watch list order, and the potential prejudice to her in the event she needed to travel to Country D but is prevented by the watch list order, I am satisfied that it is in the best interests of the children, taking into account all of the matters under Part VII of the Family Law Act 1975 (Cth) , that the watch list order remain in place at this point in time.
The Watchlist Order will be reviewed, and when adjourning the proceedings my orders will note that one of the purposes upon the return of the matter is to review the continuation of the watch list order.
Balancing time for Ms Paige to get legal advice and put her side of the story with the prejudice to the children of the matter not being dealt with, and, the prejudice to the applicant not being dealt with and the Court’s availability of time, I am contemplating that the earliest I can reasonably get to any review is 3 May 2024. I am satisfied that the Applicant would want the adjourned date to be as soon as possible, but the reality is I do not think I can and give Ms Paige procedural fairness with a date earlier than 3 May 2024.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the ex tempore reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 8 February 2024