Dumas and Choisy

[2009] FamCA 781

FAMILY COURT OF AUSTRALIA

DUMAS & CHOISY [2009] FamCA 781

FAMILY LAW  -  CHILDREN  -  injunction restraining removal of child from Australia made ex-parte on urgent oral application  -  no application filed within period ordered  -  injunction discharged

Family Law Act 1975 (Cth)

FATHER: Mr Dumas

MOTHER: Ms Choisy

FILE NUMBER: MLC 6494 of 2009

DATE DELIVERED: 26 August, 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: BROWN J

HEARING DATE: 26 August, 2009

REPRESENTATION

THE FATHER: No appearance

SOLICITOR FOR THE WIFE: Middletons

Orders

1. That paragraph (1) of the order made herein earlier this day 26 August, 2009 be discharged and the court declares that there is no impediment to the removal of the child … born … December, 2005 (referred to in the earlier order as born on … December, 2004) from the Commonwealth of Australia. 

2. That the hearing date of 27 August, 2009 be vacated. 

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:   MLC  6494 of 2009

MR DUMAS

Father

And

MS CHOISY

Mother

REASONS FOR JUDGMENT

1. This matter comes before me on an urgent ex-parte basis.  It concerns the parties’ son, who was born in December, 2004.  The child presently lives with the mother in Melbourne. 

2. The mother practices a profession, operating from an organisation in Melbourne.

3. The child’s father is employed in a profession, lives in Sydney and operates out of Sydney and the central New South Wales coast area. 

4. The parties separated in February 2005, not long after the child was born.  The mother and the child lived for a period in Queensland and returned to Melbourne in February 2009.  Her evidence is of an intention to live permanently in Melbourne.  Her evidence is of the father having infrequent and irregular contact with the child. 

5. At or about 3:00 am. this morning, an order was made by Collier J on an urgent ex-parte application of the father, restraining the mother from removing or attempting to remove the child from the Commonwealth of Australia until 4:00 pm. on 27 August, 2009 or further order.  Having regard to the nature of that application, no judgment is before this court but it can assume that evidence before Collier J satisfied him there was a risk that the child would be removed from the Commonwealth (and, presumably, not returned) if the order were not made.

6. Collier J ordered the father to file and serve any application for parenting orders by 2:00 pm. today in the Melbourne registry of the court.  The case was otherwise listed at 10:00 am. on 27 August, 2009.  The father was to arrange service of a sealed copy of the orders of Collier J upon the mother as soon as practicable. 

7. The Melbourne court file discloses that the mother filed an initiating application on 24 July, 2009 in the Federal Magistrates’ Court, in which she sought sole parental responsibility for the child, that he live with her and that the father spend time with him on a supervised basis as agreed between the parties.  That application is returnable on 15 September, 2009 at 9:45 am.  With that application she filed a lengthy affidavit sworn on 24 July, 2009.  The court cannot say whether the father told Collier J of that application;  if his Honour had had an opportunity to read the mother’s affidavit, he may have been more sceptical about the father’s application to him.  The court can say that the father had notice of that application, although it had not been formally served on him. 

8. Before the court is a copy email from the mother’s solicitor to the father dated 25 August, 2009 to which was attached scanned copies of the mother’s initiating application and affidavit in support.  In that email the mother’s solicitor noted the difficulties experienced by a process server engaged to serve the material on the father and noted that it appeared that the father was attempting to avoid service.  In that email the solicitor advised :

   We are instructed that our client is travelling to Europe with [the child] and his nanny tomorrow.  They will be away for several weeks, returning to Australia on or about 12 September, 2009.

   The solicitor had earlier confirmed that the mother’s application was listed in the Federal Magistrates’ Court on 15 September, 2009, some three days after her return.

9. It is probable it was that advice from the mother’s solicitor that led to the father seeking the urgent injunction from the after hours service.  If a parent planned to remove a child from the jurisdiction, and not to return, it is highly improbable she would instruct her solicitor to give notice of that intention prior to her departure. 

10. Pursuant to the orders of Collier J, the father was to file an application for parenting orders in this registry of the court by 2:00 pm. today.  No such application has been filed.  There is thus no application before the court for the maintenance of the injunction.

11. The mother’s solicitor has advised that the mother learnt of Collier J’s order on arrival at the airport today, with the child;  they were booked to leave on a flight at 3:50 pm.  The father had not advised the mother’s solicitor of the order, despite having an email address for him.  Nor had the order been served on the mother.

12. The mother is to attend a conference in Europe for one week; she is accompanied by the child and a nanny.  She is due to return on 12 September.  No orders provide for the father to spend time with the child and the application of the mother before the court is that any time in the immediate future be supervised. 

13. In these circumstances I am satisfied the injunction granted earlier today should be discharged forthwith and the mother should be at liberty to remove the child from the Commonwealth of Australia forthwith.  The father has filed no application in which he seeks to maintain the interim ex-parte injunction and on the evidence presently before the court (which was not before the after hours service) an application for such an injunction would not be successful.  No doubt the bona fides of the father will be considered in due course. 

14. The hearing date of 27 August, 2009 will be vacated.  The mother’s application for final and interim orders will remain listed in the Federal Magistrates’ Court on 15 September, 2009.  A sealed copy of the orders and the reasons for judgment will be sent to the father at the address provided by him to the duty registrar;  as he has filed no application, he has no other address for service. 

I certify that the preceding
14  paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.

Dated the           day of            2009.

…………………………………………
Associate.