Falla and Vasgez and Anor

[2015] FamCA 82

FAMILY COURT OF AUSTRALIA

FALLA & VASGEZ & ANOR [2015] FamCA 82

FAMILY LAW – Child made party to the proceedings – child understands the nature and possible consequences of the case and is capable of conducting the case – respondent mother be restrained from leaving the Commonwealth of Australia

APPLICANT: Ms Falla

RESPONDENT:	Ms Vasgez
2ND RESPONDENT	Mr A Falla

FILE NUMBER: SYC 989 of 2015

DATE DELIVERED: 19 February 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 19 February 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Slater Gordon

THE RESPONDENT: Without Notice

THE 2^ND RESPONDENT: Without Notice

Orders

IT IS ORDERED

1. That Ms Falla born … 1998 be a party to the proceedings.

2. That compliance with rule 6.05 of the Family Law Rules be dispensed with.

3. That the Court declares that Ms Falla understands the nature and possible consequences of the case and is capable of conducting the case.

4. That this application be dealt with on an urgent ex parte basis.

5. That pending further order the respondent mother Ms Vasgez (married name Falla) born … 1970 be restrained from leaving the Commonwealth of Australia.

6. That this matter be returnable before the Honourable Justice Rees on Tuesday 24 February 2015 at 10am.

7. That a copy of these orders and all applications and affidavits in the proceedings together with the Reasons for Judgment be served upon the respondents by 6pm on Friday 20 February 2015.

8. That on Tuesday 24 February 2015 the mother bring to the Family Court of Australia the Australian passport issued for Ms Falla born … 1998.

IT IS REQUESTED

1. That the Australian Federal Police give effect to the order 2 herein by placing the name of the said mother Ms Vasgez (married name Falla) born …1970 on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the mother’s name on the Watch List for a period of two years.

10.That upon expiration of the period referred to in order 2 and subject to any further order of a court of competent jurisdiction, the Australian Federal Police will cause the removal of the mother’s name from the Watch List.

11.That the solicitors for the applicant are authorised to provide and publish to the Department of Foreign Affairs and Trade (“the Department”) any information which the Department might request in aide of providing consular assistance to the applicant including but not limited to the provision of copies of any documents produced in the course of the proceedings including orders, judgments and an account of the proceedings.

12.That the parties have liberty to restore the matter before the Honourable Justice Rees on short notice by arrangement with the Associate to the Honourable Justice Rees.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Falla & Vasgez and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 989  of 2015

Ms Falla

Applicant

And

Ms Vasgez

Respondent

And

Mr A Falla

Respondent

REASONS FOR JUDGMENT

1. Before the Court is an application brought by a child Ms Falla (“Ms Falla”) born in 1998 and thus now 16 years of age.

2. Because of the urgency of the matter, it was heard on an ex parte basis without notice to the respondents, who are her parents, and orders were made at the conclusion of the evidence. I indicated that reasons would be delivered as soon as possible. These are the reasons.

3. Ms Falla was born in the Country B but has been residing with her mother in the Australian Capital Territory for a number of years. She is an Australian citizen and an Australian passport has been issued for Ms Falla.

4. In mid-August 2014, Ms Falla was taken to the Country B by her mother and left in the care of maternal relatives. The mother returned to Australia, leaving Ms Falla in the Country B, where she remains. The mother kept Ms Falla’s passport.

5. Ms Falla wishes to leave the Country B and return to Australia.

6. Before the Court is an affidavit by Ms C (“Ms C”), who is a friend of the mother and has a close relationship with Ms Falla. Ms C deposes that she and her husband have previously cared for Ms Falla on occasions when the mother has travelled overseas and that they have a close relationship with her. Ms C deposes that she and her husband care for Ms Falla, wish to see her safely returned to Australia and will care for her upon her return to Australia.

7. Because there was no affidavit evidence from Ms Falla before the Court, Ms Falla gave oral evidence by telephone.

8. As a result of Ms Falla’s oral evidence I am satisfied that it is appropriate that she be joined as a party to the proceedings and, in the circumstances, I dispense with the requirement that an application be filed by Ms Falla pursuant to rule 6.05 of the Family Law Rules seeking to become a party.

9. Having read the emails which Ms Falla has sent to Ms C and to the Consular Emergency Centre at the Department of Foreign Affairs and Trade in City D, and having considered her oral evidence, I am satisfied that Ms Falla understands the nature and possible consequences of the case and is capable of conducting the case.

10. The circumstances in which Ms Falla was taken to the Country B are set out in the affidavit of Ms C and in the email correspondence which Ms Falla herself sent to Ms C and to the Department of Foreign Affairs and Trade.

11. Ms C deposes that approximately four years ago the mother took Ms Falla to the Country B and left her there for around a year. Prior to taking Ms Falla, the mother had a conversation with Ms C in which Ms C asked why Ms Falla was being taken to the Country B and the mother said “We don’t get along well. In the Country B she will feel the hardship.” Ms C said “Why don’t you just take a vacation and have some time apart?” And the mother replied, “No, I would end up killing her. If I go to jail, I still have two more kids.”

12. Ms C deposes that in August 2014, she became aware that the mother had again taken Ms Falla to the Country B and she contacted Ms Falla via Facebook. Ms Falla advised Ms C that she was staying at her paternal grandparent’s home, Ms C contacted Ms Falla’s grandfather who said to her “[the mother] brought [Ms Falla] back here and dumped her here and we don’t know why.”

13. In an email sent by Ms Falla to Ms C on 17 January 2015, Ms Falla says:

    My name is [Ms Falla]. I am 16 years old and I’m writing this letter to request an appointment with the Australian Embassy, with the hope to seek some advice or help about my current situation.

    It was mid August last year when my mum sent me back here in [Country B] against my will for the second time. Although I have a feeling that she did it to cover up her abusive tracks, I’m still quite unsure about the exact reasons behind her actions. My mum’s started hurting me at around the age of 10 when I admitted to her that I was more comfortable with other people than I was with her. Ever since then, her attitude towards me became colder and she favored me less than my two other siblings, that it got up to the point where I would get a slap from her or get something thrown at me for making little mistakes.

    I was halfway through year 7 when my mum first decided to send me back here in [Country B]. She didn’t give me any kind of warning that I was leaving. She pulled me out of school and packed my things for me, only to be informed about my departure on the day a couple of hours before my flight was set to take off. I lived with my mum’s family when I was sent back at that time. However, I was unable to continue my first year of high school after leaving Australia, as my mum wanted me to experience how hard my life would be once she gets rid of me. When the year ended, I was able to come back to Australia with my mum and my siblings. When I got back in Canberra, I thought things would run differently for good, and it did for a little while. I got right back on track at school and I landed myself a job at [E Pty Ltd]. It wasn’t the best job but I was able to make new friends, buy the things that I wanted and most importantly, learn how to be more independent and boost my self-esteem. Unfortunately it didn’t last for very long because my mum decided to send me back again two years later.

    I only had half a semester left of high school before I was scheduled to graduate when my mum decided to once again, pull me out of school a couple of months ago. Unfortunately, a week before I was informed about my sudden departure, I had a massive argument with my mum which involved a lot of hitting, punching, pulling, throwing, slapping and strangling. After the argument, she told me to stop coming to work then took all of my gadgets. I wasn’t able to tell my managers or anyone about my situation because I had no way to contact them so I just decided to leave peacefully. Instead of living with her family again, she sent me back to my dad to go live with him because she was aware that my dad is incapable of giving me the things that I needed such as a proper education.

14. Ms Falla resided for a short period with her father but that arrangement came to an end when they had an argument and the father was violent towards Ms Falla. Ms Falla contacted Ms C’s brother, Mr F and went to stay with him and his family.

15. In an email dated 8 February 2015, addressed to Mr G of the Consular Emergency Centre at the Department of Foreign Affairs and Trade in City D. Ms Falla records that her father and her mother’s brother came to Mr F’s house and collected her. Ms Falla’s father told her that he had spoken with her mother and the mother promised that she would start the process of bringing Ms Falla back to Australia so that she could go back to school. Ms Falla went with her father and uncle to reside with her uncle and aunt but formed the view that her mother was not in fact planning to arrange for her to come back to Australia.

16. Ms Falla had a mobile phone which had been provided by Mr F and she hid the phone from her uncle and aunt. When Embassy and Consular officials in City D tried to contact Ms Falla she was unable to take their calls because she was afraid that her phone would be removed.

17. A week after Ms Falla arrived at her aunt’s house she decided that she needed to leave and she packed her belongings and left the house at about 11 o’clock at night. She telephoned a relative who collected her and took her to Mr F’s home. Ms Falla is presently staying with Mr F and his family.

18. In her email, Ms Falla says

    …Right now I am staying with [Mr F’s] family and this is where I wish to stay until it’s time for me to go back to Australia. My mum’s family haven’t contacted since I’ve told them that I have gone to the embassy and seeked for help and told them to respect my decision and to not worry about me as I am in good hands. I have also told them not to contact me and they haven’t since then but I’m hoping that they wouldn’t try to contact me again or try to get me to come with them. If my mum or her family ever tries to come get me, I would like to have the freedom to choose whether I want to go with them or not. If my mum personally comes to pick me up and says that she would be taking me back to Australia but she wants me to come stay with her and her family, I would like to have the right to refuse. Instead, I would just meet them at the airport while escorted by an official of some kind to make sure that they’re not tricking me again and I would actually get on the plane safely without any hassle. I am aware that my mum’s family are worried about what I’m going to do to my mum, whether I would press charges against her or not and I just want to say that I’m not planning to do anything that would ruin my mum’s and her family’s chances to get a good future. All I want is to get back to Australia, continue my studies and if possible get as far away from my mum as possible.

19. The Consular Emergency Service has been hampered in its efforts to provide assistance to Ms Falla by lack of information and difficulties in contacting Ms Falla and Mr F. The orders will authorise the solicitors acting for Ms Falla to provide any and all information to the Consular Emergency Service that might assist the Consular Emergency Service in its efforts on Ms Falla’s behalf.

20. In her oral evidence, Ms Falla made it clear that she consented to information being provided to the Consular Emergency Service. Ms Falla’s solicitors will be entitled to receive from the Consular Emergency Service any information which Ms Falla is entitled to receive.

21. I am conscious of the fact that the evidence to which I have referred in these reasons is untested and the mother and the father have not has the opportunity to file any material setting out their version of the events which have transpired. However, on a prima face basis, I am satisfied that Ms Falla has been left in the Country B with no means of returning to Australia and that her mother has retained Ms Falla’s passport.

22. I am satisfied that Ms Falla wishes to return to Australia. In her oral evidence Ms Falla said that she wanted to go back to school and that she would take extra classes to make up for the time that she had missed.

23. In relation to her father, Ms Falla said that she had a better relationship with her father than with her mother but that her father had his own family and was not in a position to assist her.

24. Because this matter has been dealt with ex-parte, neither Ms Falla’s mother nor her father has been served with documents and directions will be made requiring them to be served as a matter of urgency.

25. Ms Falla believes that her mother is due to fly out of Australia on Saturday 21 February 2015.

26. In the circumstances it is appropriate that the mother surrender Ms Falla’s passport so that, when proper arrangements can be made for Ms Falla’s welfare, those arrangements can be carried out.

27. The orders will require that the mother attend at Court on Tuesday 24 February 2015 and surrender Ms Falla’s passport to her solicitors.

28. In order that the mother does not leave the country, taking Ms Falla’s passport with her, the Australian Federal Police will be requested to place her on the Airport Watch List.

29. When the matter is next before the Court, consideration will be given to whether or not Ms C should be joined as a party to the proceedings.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 19 February 2015.

Associate:  SNK

Date:  19/2/2015