FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Bellanger & Wemble (No 3) [2024] FedCFamC2F 1139
File number(s): MLC 5456 of 2023 Judgment of: JUDGE O'SHANNESSY Date of judgment: 20 August 2024 Catchwords: FAMILY LAW – Parenting – where children alleged to have been removed by force from the “live with” parent in a foreign place – grandparent alleged to have aided and abetted contravention of final orders and recovery order – whether a grandparent should be restrained from leaving Australia – where it is alleged a parent retains children in a foreign country and a grandparent aids and abets that retention- consideration of impact of culture and customary law of a foreign country – where it is alleged children detained to enforce return of dowry – dowry paid in animals more than a decade ago – whether injunctions may support return of children to the “live with” parent – whether any risk of flight – potential serious penalties if mother’s case made out, including imprisonment – whether section 92 of the Constitution implied freedom of movement – interim injunctions made. Legislation: Acts Interpretation Act 1901 (Cth) s 7(2)(b-e)
Criminal Code Act 1995 (Cth) ss 11.2(1)-(3) and 15.4
Family Law Act 1975 (Cth) ss 7A, 65M, 65P, 65Q, 65YA, 67X(2)-(3), 68B, 70NAC, 70NDA and 114
Cases cited: AMS v AIF (1999) FLC 92-852
Bellanger & Wemble [2023] FedCFamC2F 1246
Eaby & Speelman (2015) FLC 93-654
Gerner and Anor v Victoria [2020] HCA 48, (2020) ALR 394
Goode and Goode (2006) FLC 93-286
Whitehall & Talaska [2024] FedCFamC2F 768
Division: Division 2 Family Law Number of paragraphs: 118 Date of last submission/s: 3 May 2024 Date of hearing: 3 May 2024 Place: Melbourne Solicitor for the Applicant: Sunshine Lawyers The First Respondent: In Person Counsel for the Second Respondent: Mr Tesoriero Solicitor for the Respondents: Ajak & Associates 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:
20 AUGUST 2024
THE COURT ORDERS THAT:
1.Until further order the second respondent, Ms Paige (‘the Grandmother’) be and is restrained from leaving the Commonwealth of Australia.
2.MS PAIGE, be and is restrained from departing the Commonwealth of Australia.
3.The Court requests that the Australian Federal Police give effect to this order by placing Ms Paige on the Family Law Watch List in force at all points of international arrival and departure in the Commonwealth of Australia and maintain Ms Paige on the Family Law Watch List for the said period, until the Court orders its removal, or with the consent of all parties. This order ceases to have effect 2 years after the date on which it is made.
4.The Marshal and all officers of the Australian Federal Police and of the police forces of the various States and Territories are requested and empowered to take all necessary steps to give effect to these orders.
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- AGLC
- Bellanger & Wemble (No 3) [2024] FedCFamC2F 1139
- Case
- [2024] FedCFamC2F 1139
- Decision Date
CaseChat Overview and Summary
The court considered the cultural and customary law implications of the situation, as well as the potential for serious penalties for Mr Wemble, including imprisonment if his case were to be made out. The court also explored the applicability of section 92 of the Constitution, which concerns the implied freedom of movement. The court concluded that it was necessary to issue interim injunctions to restrain Ms Paige from leaving Australia and to request the Australian Federal Police to enforce this restraint by placing her on the Family Law Watch List. The court set a final hearing date and outlined the procedural steps to be followed, including the appointment of an Independent Children's Lawyer to represent the children's interests.
The orders made by the court include restraining Ms Paige from leaving Australia until further order, with the Australian Federal Police to enforce this by placing her on the Family Law Watch List. The court also requested that the Marshal and police officers of various jurisdictions take necessary steps to enforce these orders. Additionally, the court scheduled a final hearing and outlined the procedural steps for the parties, including the provision of affidavit evidence and the role of the Independent Children's Lawyer. The court further noted the potential need for expert evidence regarding the applicable law of the foreign country and granted leave for the Independent Children's Lawyer to inspect and copy relevant material.
The final orders include the interim injunctions against Ms Paige, the scheduling of a final hearing, and the appointment and directives for the Independent Children's Lawyer. The court also noted the potential for the Commonwealth to assist in the proceedings by providing expert evidence on the foreign law applicable to the case.
Orders
Orders of the court
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:
20 AUGUST 2024
THE COURT ORDERS THAT:
1. Until further order the second respondent, Ms Paige (‘the Grandmother’) be and is restrained from leaving the Commonwealth of Australia.
2. MS PAIGE, be and is restrained from departing the Commonwealth of Australia.
3. The Court requests that the Australian Federal Police give effect to this order by placing Ms Paige on the Family Law Watch List in force at all points of international arrival and departure in the Commonwealth of Australia and maintain Ms Paige on the Family Law Watch List for the said period, until the Court orders its removal, or with the consent of all parties. This order ceases to have effect 2 years after the date on which it is made.
4. The Marshal and all officers of the Australian Federal Police and of the police forces of the various States and Territories are requested and empowered to take all necessary steps to give effect to these orders.
5. The contravention application served on or about 30 April 2024 be treated as filed at that date for all purposes.
6. All extant applications, including the application for contravention against the respondents, be and are listed for final hearing before Judge O’Shannessy on 11 November 2024 at 10.00am.
7. The parties are permitted to rely on affidavit material already filed and served, provided notice is given to the other parties in writing no less than 21 days prior to hearing and, save as to the respondents’ evidence in defence of the contravention application (if any), any further evidence must be on affidavit and filed and served no later than 21 days prior to the hearing.
8. Any amended application or response be filed and served no later than 28 days prior to final hearing.
9. Pursuant to s 68L(2) of the Family Law Act 1975, X born in 2011 and Y born in 2013 be independently represented AND IT IS REQUESTED that Victoria Legal aid body arrange such independent representation and:
(a) forthwith upon appointment by state/territory legal aid body or otherwise, the Independent Children's Lawyer file a notice of address for service;
(b) within 48 hours of notification of such appointment the solicitors for the respective parents (or, if unrepresented, then the parent themselves) provide to the Independent Children's Lawyer copies of all applications and affidavits upon which that party relies together with any existing orders and copies of any relevant reports;
(c) the Independent Children's Lawyer fulfil the requirements set out in 'Guidelines for the Independent Children's Lawyer' as published on the website of the Federal Circuit and Family Court of Australia, and in particular carry out the tasks set out in clauses 5, 6.2, 6.3, 6.5 and 6.7; and
(d) the Independent Children's Lawyer prepare a minute of the orders they will recommend be made as final orders.
10. Leave is granted to the Independent Children's Lawyer to inspect and copy:
(a) Subpoena material produced by Home Affairs on 3 May 2024;
AND THE COURT NOTES:
A. The Court will seek (and may or may not obtain) the assistance of a single expert witness as to the applicable law of Country D including the interaction between legislated law and customary law including the local law or custom or practice of return of dowry, and residence of children, after divorce.
B. An Independent Children's Lawyer has been appointed for the following reasons:
(a) The allegation of abuse of the children by the forceable removal of them from the “live with” parent.
C. Victoria Legal Aid has been given access to this file via the Commonwealth Courts Portal ("CCP") and is granted leave to view copies of documents available on the CCP.
D. 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.
E. 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.
F. Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
G. 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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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