DEWAN & TANDON

[2020] FamCA 933

FAMILY COURT OF AUSTRALIA

DEWAN & TANDON [2020] FamCA 933

FAMILY LAW – CONTRAVENTION – Warrant for Arrest – where the father has been ordered on several occasions to return the parties’ child to Australia – where the father has failed to comply with orders – where the mother requests that a warrant for arrest of the father be issued – order that a warrant be issued for the arrest of the father.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth) r 21.16

APPLICANT: Ms Dewan

RESPONDENT: Mr Tandon  

FILE NUMBER: MLC 1985 of 2020

DATE DELIVERED: 13 October 2020

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 13 October 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Singh, Saundh Singh & Smith Lawyers

THE RESPONDENT: No appearance

Orders

1. That all extant applications be adjourned for mention before me at 9.30am on 10 December 2020.

2. That pursuant to r. 21.16 of the Family Law Rules 2004 a warrant be issued for the arrest of Mr Tandon born … 1982 (the father) and such warrant be executed forthwith AND IT IS REQUESTED that the Australian Federal Police do all things necessary as a matter of urgency to execute the warrant.

3. That upon execution of the warrant the father be provided with a copy of the warrant and of this order and he be released on bail upon the giving of an undertaking by him to attend this Court at the Melbourne Registry at 9.30am on 10 December 2020 and in the event of the father failing to give such undertaking he be brought before the Melbourne Registry of this Court.

4. That my reasons for judgment given this day be transcribed and placed upon 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 Dewan & Tandon 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 1985 of 2020

Ms Dewan

Applicant

And

Mr Tandon

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This matter comes before the Court today in a Judicial Duty List as a result of orders made by Registrar George on 26 August 2020.  That day the registrar made orders listing the mother’s application for contravention filed 26 May 2020, to this list.  Further orders were made providing that the mother’s solicitor advise the father of the listing date by email. 

2. The background to the proceedings is as follows. 

3. The applicant mother is Ms Dewan and she is aged 29 years. 

4. The respondent father is Mr Tandon and he is aged 38 years. 

5. The parties commenced cohabitation upon their marriage in 2013, and they separated on a final basis in July 2018. 

6. There is one child of the relationship, X, born in 2017.  X is now aged 3 years. 

7. The mother originally commenced proceedings in the Federal Circuit Court on 21 February 2020. That application was made seeking orders for the father to return X to her care. The mother sought a recovery order pursuant to s 67Q of the Family Law Act 1975 (Cth) (“the Act”). Further orders were sought that X live with the mother and that X spend time with the father pursuant to Court orders.

8. The background to that application is as follows.  The mother deposes in her affidavit material that the parties entered into an arranged marriage.  She deposes that she was subjected to physical, emotional and psychological abuse and financial abuse by the father during the course of their marriage.  It was as a result of that conduct, she says, that the parties separated. 

9. Notwithstanding those difficulties in early 2020, the parties travelled to their country of origin, India, for the purposes of visiting family.  The mother deposes that when in India she was placed under pressure by the father to assign to him her parental rights and responsibilities.  The mother refused to comply with the father’s requests.  The mother deposes that as a result of fears for her safety she fled India and returned to Melbourne on 5 February 2020.  X was left with the father upon the mother’s return to Australia.  The mother has not seen or communicated with X since her departure from India in February 2020. 

10. The matter first came before the Federal Circuit Court on 1 April 2020 before Judge Boymal.  That day orders were made for the father to return the child to Australia on or before 15 May 2020.  Orders were also made placing X on the airport watchlist and restraining the father from leaving the Commonwealth of Australia. 

11. The matter returned to Court before Judge Boymal on 18 June 2020.  Further orders were made by her Honour requiring the father to return X to Australia.  Orders were made that X be returned to Australia on or before 10 July 2020.  Further orders were made of a procedural nature requiring the father to attend upon or contact the Australian High Commission in B City, India, to ensure that the appropriate travel documents could be arranged for X to travel to Melbourne. 

12. The matter again returned to Court on 30 July 2020 before Judge Boymal.  The position then, as it is today, was that the father had not returned X to Australia.  That day further orders were made by her Honour requiring the father to comply with previous orders to arrange for X’s return to Australia.  In addition, orders were made transferring the proceedings to this Court. 

13. On 26 May 2020, as a result of the ongoing non-compliance by the father with respect to the orders requiring X’s return to Australia, the mother caused an application for contravention to be filed.  It is that application that is before the Court today.  That application, as I have noted previously, was listed before Registrar George on 26 August 2020 and orders were made listing the matter before me today. 

14. The mother confirms through her affidavit filed 12 October 2020 that the father has been given notice of this hearing as was required pursuant to Registrar George’s orders.  Exhibit D-1 is the email from the mother’s lawyers to the father informing him that this matter is listed for hearing before the Court on 13 October 2020 at 10.00am. That email is dated 1 September 2020.  Accordingly, I am satisfied that the father has had notice of the hearing listed this day. 

15. Exhibit D-2, relied upon by the mother, is the letter from her lawyers to the father’s former lawyers serving the application for contravention and her affidavit in support.  That email is dated 26 May 2020.  The father’s former lawyers filed a Notice of Withdrawal as Lawyer on 4 June 2020.  That day a Notice of Intention to Withdraw as Lawyer was also filed in the Federal Circuit Court.  Paragraph 5 of that notice informs the father that the case is next listed before the Court at 305 William Street, Melbourne, on 18 June 2020 in respect of an interim defended hearing as well as on 29 June 2020 for a directions hearing in relation to the contravention application.  Hence, I am satisfied having regard to that document as well as the letter dated 26 May 2020, that the father has had notice of the contravention application currently before the Court.

16. Prior to the hearing commencing this day the Court has attempted to communicate with the father by telephone on three occasions.  The attempts to telephone the father were unsuccessful as he did not answer the calls.  There has been no communication from the father either to the Court or to the mother’s lawyers in anticipation of this hearing.  It is against that backdrop that the mother now seeks that a warrant for arrest issue and be served upon the father as a result of his non-attendance at Court. 

17. Given the history of the matter and the ongoing failure of the father to return the child to Melbourne in accordance with orders of Judge Boymal, I am satisfied that the time has come for a warrant to issue as sought by the mother. 

18. What I have proposed to do is adjourn the contravention application for mention before me at 9.30am on 10 December 2020. Further, I will cause a warrant to issue pursuant to r 21.16 of the Family Law Rules 2004 (Cth), such warrant to be executed by the Australian Federal Police. In the event that the warrant is executed, upon undertaking by the father to attend Court on the adjourned date I will make provision for him to be released on bail.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 13 October 2020

Associate: 

Date:  13 October 2020