Demarchis and Kutras and Anor
[2010] FMCAfam 1288
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DEMARCHIS & KUTRAS & ANOR | [2010] FMCAfam 1288 |
| FAMILY LAW – Parenting – order permitting child to be removed from Commonwealth. |
| Applicant: | MS DEMARCHIS |
| First Respondent: | MR KUTRAS |
| Second Respondent: | MS KUTRAS |
| File Number: | PAC 5342 of 2010 |
| Judgment of: | Henderson FM |
| Hearing date: | 9 November 2010 |
| Date of Last Submission: | 9 November 2010 |
| Delivered at: | Parramatta |
| Delivered on: | 9 November 2010 |
REPRESENTATION
| Applicant: | In person |
| First Respondent: | No Appearance |
| Second Respondent: | No Appearance |
ORDERS
Leave is granted to the Applicant to make an oral application.
The interim orders of 31 October 2001 are discharged.
The orders of 23 November 2001 are confirmed.
The Applicant, Ms Demarchis, be permitted to remove the child, [X] (also known as [X]) born [in] 1993 (female), from the Commonwealth of Australia on any occasion she deems appropriate without notification to or the consent of the father or mother.
IT IS NOTED that publication of this judgment under the pseudonym Demarchis & Kutras is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAC 5342 of 2010
| MS DEMARCHIS |
Applicant
And
| MR KUTRAS |
First Respondent
| MS KUTRAS |
Second Respondent
REASONS FOR JUDGMENT
I will formerly allow Ms Demarchis to make her oral application to take her niece, [X] (also known as [X]) born [in] 1993, out of Australia.
I formerly discharge the interim orders made 31 October 2001, which were ex parte orders and confirm the final orders I made on
23 November 2001.
The orders of 23 November 2001 in part restrained the mother of the child from removing her from the Commonwealth of Australia.
No other person was so restrained including the child’s aunt, who is the applicant today, with whom [X] has lived prior to and since the orders were made by me on 23 November 2001.
I will today make a positive order that the maternal aunt, the carer of the child, [X], also known as [X], born [in] 1993, be permitted to remove her from the Commonwealth of Australia on any occasion the maternal aunt deems appropriate without notification to or consent in writing or otherwise of the child’s natural mother and father.
A copy of this decision is to be sent to the appropriate Officer of Australian Federal Police.
For reasons I and the aunt are unable to understand, AFP officers at Sydney Airport refused to allow the aunt to remove [X] from Australia two days ago despite her having travelled overseas with her aunt on two prior occasions since the orders of 23 November 2001 were made.
This action of the AFP officers was not sanctioned by any current order of a Court having jurisdiction to make airport watch list orders and has interfered with and disrupted both [X] and her aunt’s plans for an overseas holiday which had been enjoyed by them on two prior occasions between 2001 and today.
The conduct has also resulted in an unnecessary increase in costs with changing of flights and the like.
The action and conduct of the particular AFP officers borders on abuse of process and has raised alarm bells for me for the following.
On 9 August 2010, some two months ago, I made a specific order restraining a 12 year old child from being removed from the Commonwealth of Australia in an ongoing matter in my docket. The airport watch list order I had made was in accordance with the then order preferred by the AFP which order is used by Judicial Officers throughout Australia.
Acting contrary to that order the Australian Federal Police permitted the boy, then aged 12, to remove himself to Hong Kong on 12 August 2010, some three days after I had made the order.
Needless to say his father was dismayed as was I when these events came to light.
When this conduct was raised with the Australian Federal Police they responded that the child had presented himself to the airport unaccompanied, the order in place did not restrain the child from removing himself from Australia and he was permitted to travel to Hong Kong where his mother was residing.
This decision by the AFP officers was made in circumstances where the injunction and restraint I had placed on the child’s travel was precisely in accordance with that which the Australian Federal Police asks this Court and the Family Court and Judges of this Court to make.
Following from that event the prior airport watch list orders have been amended to include a restraint on a child from removing themself from the Commonwealth of Australia.
My concern in this matter is that the only reason I can see why [X], who is now aged 17.5 years, and her Aunt were stopped from travelling on this occasion was that my name “Henderson” came up when checks were made at the airport.
If that be the reason the relevant AFP officer has not carried out his or her statutory duty and has restrained a person from leaving with a child when no such restraint was in force against them, in so doing the officer may have acted outside the law.
If I be correct then what has occurred is, in my view, an improper exercise of discretion. For those in a position of power such as the officers of the AFP manning the airport watch list, the proper and lawful exercise of their discretion is vital to protect the rights of citizens and children. The terms of the actual order must be carried out.
It is of concern that a 12 year old unaccompanied child is permitted to leave Australia for Hong Kong despite an airport watch order restraining his travel overseas being in place and yet a 17.5 year old girl accompanied by her aunt is not permitted to travel when there is no order in place preventing the aunt and child from travelling and they have done so in the past
Upon reading the order I made on 23 November 2001 there was never an injunction or restraint on the maternal aunt, Ms Demarchis, from removing her niece from the Commonwealth of Australia.
Therefore, I make the Orders as set out at the commencement of this decision.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Henderson FM
Date: 22 November 2010
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