CRAWLEY & ARNOLD

[2015] FCCA 2261

FEDERAL CIRCUIT COURT OF AUSTRALIA

CRAWLEY & ARNOLD [2015] FCCA 2261

Catchwords:
FAMILY LAW – Parenting – Order for child to live with mother – mother and father in Australia – child in (country omitted) due to actions of father – injunction on the father leaving Australia until he complies with (country omitted) order that the child live with maternal grandmother.

Applicant: MS CRAWLEY

Respondent: MR ARNOLD

File Number: SYC 4091 of 2015

Judgment of: Judge Henderson

Hearing date: 30 June 2015

Date of Last Submission: 30 June 2015

Delivered at: Sydney

Delivered on: 30 June 2015

REPRESENTATION

Solicitors for the Applicant: Di Lizio & Associates

Solicitors for the Respondent: No appearance

ORDERS

1. The matter be adjourned to 21 July 2015 at 9:30am for further mention.

2. The father is to file and serve his response and affidavit by 15 July 2015.

3. The child X born (omitted) 2007 live with the mother.

4. The mother have sole parental responsibility for the child.

5. The mother’s initiating application, affidavit and a copy of these Orders are to be personally served on the father.

6. Until further order the respondent, by himself, his servants or agents are restrained from removing or attempting to remove MR ARNOLD born (omitted) 1975 from the Commonwealth of Australia.

7. The Marshal of the Federal Circuit Court of Australia and all officers of the Australian Federal Police and of the police forces of the states and territories of the Commonwealth of Australia are requested to give effect to these orders and to take all necessary steps to restrain either party from removing or attempting to remove the said person from the Commonwealth of Australia.

8. Until further order the Commissioner of the Australian Federal Police take all necessary steps to immediately place the said person’s names on the airport watch list, also known as the PACE Alert system, at all points of arrival and departure in the Commonwealth of Australia.

9. The Australian Federal Police maintain an airport watch of the said person on all flights leaving any international airport in all states and territories of the Commonwealth of Australia.

10. The Australian Federal Police and the Police Forces of the States and Territories of the Commonwealth of Australia assist in the implementation of, and give effect to, these orders.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYC 4091 of 2015

MS CRAWLEY

Applicant

And

MR ARNOLD

Respondent

REASONS FOR JUDGMENT

1. The application before the Court is an application by a mother for orders that her daughter, X, born (omitted) 2009, live with her and she have sole parental responsibility. Her interim application is that the father of the child be prevented from leaving the Commonwealth of Australia. The basis of this application would be if I make the interim order sought that the child lives with the mother.

2. There is no other basis to make such an order as the facts are this. The mother took the child to (country omitted) in 2013 for a holiday. Unbeknownst to the mother, the father obtained an order in a (country omitted) court in September 2013 which meant she could not remove the child from (country omitted), despite the child being an Australian citizen and travelling on an Australian passport. This is the (omitted) law current in (country omitted) I am informed.

3. The mother was given no notice of the hearing in (country omitted) by the father and her views were not taken into account at the hearing. The mother was not able to leave (country omitted), and she returned to her mother’s home in (country omitted) with her daughter. The mother left for Australia alone a few weeks later and left the child in her mother’s care.

4. The father has remarried a Ms Crawley. Ms Crawley picked the child up from school while she was in the care of the maternal grandmother and did not return her to the maternal grandmother.

5. The mother again travelled to (country omitted) in September 2014 to attend proceedings in relation to the return of the child to the maternal grandmother.

6. An interim order was obtained by the mother and her mother on 22 October 2014 that Ms Crawley return the child to the custody of the maternal grandmother and a copy of that order is annexed to the mother’s affidavit.

7. The father had returned to Australia by 22 October 2014 the time of delivery of this judgment. However, Ms Crawley failed to return the child to the maternal grandmother despite the Order that had been made by a Court in (country omitted) on 22 October 2014.

8. On 5 May 2015 orders for enforcement of the 22 October 2014 orders were made compelling Ms Crawley to return the child and again she has failed to comply with that order. Therefore there is an order enforcing the (country omitted) courts that the child be in the care of the maternal grandmother.

9. The mother is here in court today seeking I make an order that the child live with her in Australia and she have sole parental responsibility for the child despite her still being in (country omitted) in order to ground an application to injunct the father from leaving the Commonwealth of Australia until he and his wife comply with the order, that the child be returned to the grandmother’s care so that she can be returned to the mother’s care.

10. In these circumstances, I will make, on an interim basis, an order that the child, X, born (omitted) 2009, live with her mother. I will make an order for the mother to have sole parental responsibility.

11. I do so having regard to the matters under the Family Law Act. The child has been denied the benefit of having a meaningful relationship with each of her parents by the conduct of the father and his wife, Ms Crawley.

12. The father and his wife have not even complied with the (country omitted) court orders that the child be in the care of the maternal grandmother, who would be in a position to bring her back to Australia.

13. The father’s unilateral actions in August/September 2013 preventing the mother from removing the child to Australia, where she was born, a country of which she is a citizen and was travelling on an Australian passport is not conduct that is child focused or in the child’s best interest.

14. The father has acted in a way to deprive the child of the relationship with her mother and has acted in a way to minimise the benefit the child would receive from a relationship with her mother by his actions in having an order made on an ex parte basis the child that she would be unable to be removed from (country omitted).

15. I do not know what the wishes of the child are.

16. I am concerned about the lack of insight the father shows towards the emotional and psychological needs of the child, who always lived with her mother up until September 2013, and the actions of the father and his wife in failing to comply with an order of the (country omitted) courts that the child be returned to the care of the maternal grandmother where the mother had left her when she had to return to Australia from (country omitted) in 2013.

17. The father has acted in a way to fundamentally change the child’s usual care arrangements and has acted in a way such that the benefit to the child of a meaningful relationship with a mother can no longer be carried out because she is in (country omitted).

18. In these circumstances it is proper today I make the order that the child live with her mother.

19. I will rebut the presumption of equal shared parental responsibility. The father’s conduct indicates he has no proper attitude towards the responsibilities of parenthood or the needs of a young child.

20. To enable the child to be returned to Australia and retain her Australian citizenship rights and the benefits that flow from those rights, I will injunct and restrain the father, Mr Arnold, born (omitted) 1975, from leaving the Commonwealth of Australia pending further order of the Court.

21. His name will be placed on the Airport Watch List from all points of departure and arrival from the Commonwealth of Australia.

22. I request that this application, together with the orders made today, be personally served on the respondent father, and I will give this matter a return date in July – 21 July.

23. This matter is returnable 21 July 2015. The father is to file and serve his response and affidavit in reply by 15 July.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Henderson

Associate:

Date: 19 August 2015