Chikuwa and Madut (No. 2)

[2018] FamCA 725

FAMILY COURT OF AUSTRALIA

CHIKUWA & MADUT (NO. 2) [2018] FamCA 725

FAMILY LAW – CHILDREN – interim orders – where the father did not attend the hearing – where the children are in Country B – orders that the mother have telephone/Skype communication with the children no less than once per week – where the orders are not opposed.

Family Law Act 1975 (Cth)

APPLICANT: Ms Chikuwa

RESPONDENT: Mr Madut

FILE NUMBER: MLC 6416 of 2018

DATE DELIVERED: 18 June 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 18 June 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Powney

SOLICITOR FOR THE APPLICANT: Women’s Legal Service Victoria

COUNSEL FOR THE RESPONDENT: Mr Mayek

SOLICITOR FOR THE RESPONDENT: AC Law Group

Orders

1. That the respondent father make, file and serve on the applicant mother any affidavit or response upon which he intends to rely within seven days of the date of these orders.

2. That until further order the mother have telephone/Skype communication with the children no less than once per week at times agreed between the parties and failing agreement, each Friday between 2.00pm and 7.00pm Melbourne time.

3. That pursuant to s 65DA(2) and s 62B, 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.

4. That the matter be listed for interim hearing in the Senior Registrar’s List at 10.00am on 19 July 2018.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Chikuwa & Madut (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 6416 of 2018

Ms Chikuwa

Applicant

And

Mr Madut

Respondent

REASONS FOR JUDGMENT

1. This matter returns to the Court today pursuant to orders I made on an ex-parte basis on 8 June 2018.  That day an ex-parte application was made on behalf of the applicant mother, that being an application in which she sought orders restraining the father from leaving the Commonwealth of Australia and an order placing his name on the airport watch list. 

2. Behind that application are applications made by the mother in which she seeks the return of the two children of the relationship from the Country B to Australia and other interim parenting orders.  She also seeks final parenting orders.  That day I made orders on an ex-parte basis and otherwise adjourned the matter to this day. 

3. What has transpired since those orders were made is that on 9 June 2018 the father was served with the mother’s application, her affidavit in support and the orders made 8 June 2018.  Today the father is represented by agent solicitor, who has received instructions from a firm based in Sydney.  A notice of address for service has been filed on behalf of the father today. 

4. The father’s agent solicitor has informed the Court that he had expected to meet the father at Court today.  The matter was originally listed for hearing before me at 9.30am.  The matter did not proceed at that time due to a request by solicitors representing each of the parties for the matter to remain stood down.  Presumably that request was made to enable inquiries to be made of the father as to his whereabouts. 

5. Ultimately the matter commenced before me at approximately 10 minutes to 10:00am.  At that time I was informed of the difficulties that the agent solicitor faced in terms of an absence of instructions.  Not only was he unable to raise his client, he was unable to raise his Sydney-based instructing solicitor.  In the circumstances the matter was stood over till 11:00am.  That postponement of the hearing did not advance the father’s position and, certainly, did not assist the agent solicitor engaged to appear on his behalf today.  The father’s whereabouts are unknown.  The agent solicitor has been unable to communicate with the solicitor who has the conduct of the matter and is in Sydney. 

6. In the circumstances, the solicitor for the mother has asked that I make interim orders with respect to, first, the father having the opportunity to file a response and affidavit and second, that that the mother have telephone communication with the two children of the relationship and that the father provide the necessary contact telephone number to facilitate that time.  Otherwise it is sought that the matter be listed for interim hearing in the Senior Registrar’s list.  The interim orders I have made restraining the father from leaving the Commonwealth and for his name to remain on the airport watch list are orders that are sought to be continued.  They are orders that I made on the 8 June 2018 until further order.  So those orders stand. 

7. Sensibly, the solicitor appearing today for the father does not make any submission in opposition to the orders that I am asked to make.  In his initial submissions to the Court he indicated that it was his instructions, that the response and affidavit of his client had been prepared, and he anticipated that those documents would be filed today in any event.  That being the case, I am satisfied that it is appropriate, that I make an order that those documents be filed and served within seven days. 

8. As to the issue of the mother having a restoration of telephone communication, again that is not an order opposed at this time.  The only evidence before the Court is that of the mother.  That evidence is unchallenged.  It is her evidence that until April 218, the mother was having regular telephone communication with the two children of the relationship.  What is sought is, simply, that there be a restoration of that time.  There is no explanation as to why that time ceased.  I am further informed, although not on affidavit, that not only has there been an interruption to the mother’s communication with the children, but that also her own mother, that is the maternal grandmother, who lives in the Country B and had been attending the children regularly to spend time with them, has found in the last two weeks that she has been prevented from so visiting the children.  As a result at this point in time, the children are having no communication with any member of the maternal family. 

9. Absent any evidence that would indicate a reason for such interruption, it seems to me appropriate and in the children’s best interests, that the telephone time be restored.  The objects and principles which underpin the parenting provisions of the Family Law Act 1975 (Cth), include that children have the benefit of both of their parents having a meaningful involvement in their lives, and having a right to spend time and communicate on a regular basis with both of their parents and those significant to their care. Whilst the mother is being prevented from so communicating with the children, those objects are not being adhered to. In my view, it is important, that there be a restoration of communication between the mother and children without delay. This is particularly so, given the young ages of the children, being aged almost three and a half years and almost two years respectively.

10. I am also asked to make an order today for the appointment of an Independent Children's Lawyer.  I am not minded to make an order in those terms at this point in time.  The reality is the children are not currently present in jurisdiction.  Further, the position of the father with respect to the mother’s application at this time is unknown.  In my view, that is an application that can be more appropriately considered by the Senior Registrar at the adjourned hearing when, hopefully, the father will have put some material before the Court to inform it as to his position both with respect to the interim parenting applications and also with respect to the final application made by the mother. 

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 18 June 2018.

Associate: 

Date:  18 June 2018