CHIKUWA & MADUT

[2018] FamCA 434

FAMILY COURT OF AUSTRALIA

CHIKUWA & MADUT [2018] FamCA 434

FAMILY LAW – INJUNCTION – Ex-parte Airport Watch List application – where the mother asserts the children were removed from Australia to Country B without her knowledge or consent – where the mother is concerned the father may attempt to leave Australia soon – where the mother seeks the father be placed on the airport watch list and restrained from leaving the country due to a concern that she will be unable to locate him or obtain any parenting orders for the children’s return to Australia once he is absent Australia – interim order made restraining the father from leaving Australia and placing the father’s name on the airport watch list – order that the extant applications be adjourned.

FAMILY LAW – PRACTICE & PROCEDURE – Service – the requirement of personal service be dispensed with – orders for substituted service made.

Family Law Act 1975 (Cth)

APPLICANT: Ms Chikuwa

RESPONDENT: Mr Madut

FILE NUMBER: MLC 6416 of 2018

DATE DELIVERED: 8 June 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 8 June 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Robinson

SOLICITOR FOR THE APPLICANT: Women’s Legal Service

THE RESPONDENT: Ex-parte application

Orders

1. That the wife have leave to proceed with her application on an ex-parte basis.

2. That until further order the father Mr Madut born … 1991 be and is hereby restrained from leaving the Commonwealth of Australia AND IT IS ORDERED that the Australian Federal Police place the father’s name on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the father’s name on the Watch List until the Court orders its removal.

3. That the requirement for personal service be dispensed with.

4. That the mother do all such acts and things as may be required to effect service of the Initiating Application and affidavit of Ms Chikuwa filed this day, and orders dated 8 June 2018, upon the father as follows:

   (a)Sending an SMS message and private message to the father via email to …;

   (b)       Sending a private message to the father’s Facebook account;

   (c)Sending an SMS and private message to Mr Madut’s Facebook account;

   (d)Sending an SMS and private message to Mr D Madut’s Facebook account

5. That all extant applications be adjourned for hearing before Johns J at 9.30am on 18 June 2018.

6. That there be a transcript of the Reasons for Judgment of this day obtained and placed on the Court file.

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 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

EX-TEMPORE REASONS FOR JUDGMENT

1. These proceedings are listed before the Court today on an urgent basis arising upon the filing this day of an Initiating Application on behalf of the applicant mother which is supported by her affidavit sworn and filed this day.

2. The applicant asks that the hearing of paragraphs 8, 13, 14 and 15 of the interim orders sought in her application be dealt with on an ex-parte basis.  Those paragraphs seek that the respondent father be restrained from leaving the Commonwealth of Australia and that his name be placed on the airport watch list.  Paragraphs 13, 14 and 15 relate to the service of the application on the father, the position being that his whereabouts is unknown.  The mother has identified Facebook accounts operated by the father and two of his relatives and proposes that service be effected through that means. 

3. The background to the proceedings is as follows.  The applicant is the mother.  She is aged 20 years and is employed.  She is represented today by a lawyer from the Women’s Legal Service of Victoria.  The father is Mr Madut.  He is aged 27 years.  His occupation is unknown. 

4. The parties commenced their relationship and married in 2013.  They separated on a final basis in May 2017.  There are two children of the relationship:  X who is aged almost four years and Y who is aged almost two years. 

5. Both the applicant and the respondent were born in Country B in Africa.  The father came to Australia as a refugee in about 2007 and is now an Australian citizen.  The mother became a permanent resident of Australia in July 2017. 

6. The parties commenced their relationship in Country B, marrying there.  At that time the applicant mother was aged 15 years. 

7. The parties’ first child was born in 2014 in Country B.  In about June 2015 the parties’ child X received an Australian passport.  He shortly thereafter travelled to Australia with a paternal uncle.  The mother travelled to Australia to live in about March 2016.  At that time she was three months pregnant with the parties’ second child.  The mother deposes at paragraphs 20 to 33 of her affidavit filed this day that she was subjected to significant family violence at the hands of the respondent.  She deposes to experiencing physical abuse throughout the relationship. 

8. That abuse occurred, she says, both before and after the birth of the children.  She deposes that there were occasions when the children were exposed to the family violence, that they were present and, indeed, that the mother on occasion had to protect the children from the physical abuse.  The father did not travel to Australia with the mother in 2016.  The mother deposes that it was a relief to her that she was able to travel without him to this country. 

9. At paragraphs 41 to 55 of her affidavit the mother deposes as to the circumstances of the children’s removal from Australia to return to Country B.  The mother deposes that the children were removed from Australia without her knowledge or consent.  She deposes that she and her husband travelled to Country B without the children and that the children were left in the care, at that time, of the paternal grandmother.  The mother deposes that she returned to Australia in about June 2017.  Upon her return she was informed that the children had been returned to Country B. 

10. The mother has had no physical contact with the children since that time.  It is her understanding that the children live with the paternal grandmother in Country B.  Since that time the mother has had telephone communication with the children.  That means of communicating with the children, she says, ceased in about April 2018. 

11. The mother deposes as to her efforts to locate the father.  Since her return to Australia she has travelled to Sydney to seek him out and she has attended upon the father’s cousin, but those efforts have not resulted in her locating the father. 

12. The mother has been provided with two mobile telephone numbers from members of the Country B community who indicate that they are the telephone numbers of relatives of the father.  The mother has not used those telephone numbers due to her fear of the father.  Her inquiries have indicated that the father operates both an email address and a Facebook page.  She indicates that they may be a means of contacting the father and serving him with process in due course. 

13. The mother brings her application at this time, having recently been informed by her mother of the father’s intention to travel to Country B to remarry.  This information has come to the mother through her mother who lives in Country B. 

14. The mother deposes of her concerns that the father may attempt to leave Australia soon, especially if he is served with these proceedings.  The mother deposes that she is concerned that the children will not be returned to Australia without an order of this court.  The mother seeks that the father be placed on the watch list and restrained from leaving the country due to a concern that she will be unable to locate him or obtain any parenting orders for the children’s return to Australia once he is absent the country; it is her fear that once notified of these proceedings, he may not return to the jurisdiction. 

15. That is the basis, she says, for seeking orders on an ex-parte basis.  The allegations of the mother are at this stage untested.  I have no information or knowledge as to what the father’s position or response is to the many allegations made against him in the mother’s material.  It is always a delicate balancing act in ex-parte applications to ensure the position of both the applicant and the respondent are considered and protected in the court proceedings.  What I propose to do in the circumstances, given the very serious allegations that are raised against the father, is to make orders on an interim basis that he be restrained from leaving the Commonwealth and his name placed on the Commonwealth airport watch list on the basis that such orders be for a limited period only; I will have the matter returned to the Court next week. 

16. I am concerned that the restraint should not be for any longer than is absolutely necessary to ensure that the proceedings are brought to the father’s notice and that he has the opportunity to appear before the court and put his position.  Therefore, what I propose to do is make an order that the matter return to court at 9.30am on 18 June 2018. 

17. I will further make orders that the mother cause the Initiating Application and affidavit filed this day and these orders to be served on the father by email at the email address identified and also by a private message to the father’s Facebook account and also to the Facebook accounts of his relatives, Mr D Madut and Mr C Madut. 

18. The covering letter with respect to the service documents should indicate that the matter is listed for further hearing before the Court on 18 June 2018 at 9.30am and that the father should personally attend or have a lawyer attend on his behalf. 

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 8 June 2018.

Associate: 

Date:  8 June 2018