FALLON & BASHANDI

[2016] FamCA 335

FAMILY COURT OF AUSTRALIA

FALLON & BASHANDI [2016] FamCA 335

FAMILY LAW – CHILDREN –Parents their servants and/or agents be and are each hereby restrained from removing or attempting to remove child.  Practice and Procedure – service of application

APPLICANT: Ms Fallon

RESPONDENT: Mr Bashandi

INDEPENDENT CHILDREN’S LAWYER: Ms K Hams

FILE NUMBER: MLC 6992 of 2013

DATE DELIVERED: 20 April 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: 20 April 2016

JUDGMENT OF: Bennett J

HEARING DATE: 20 April 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Rama

SOLICITOR FOR THE APPLICANT: Starnet Legal

COUNSEL FOR THE RESPONDENT: Ms Bryan

SOLICITOR FOR THE RESPONDENT: Taussig Cherrie Fildes

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Hams

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Glezer Lanteri & Associates

Orders

IT IS ORDERED THAT:

1.The Application in a Case of the father filed 6 April 2016 be returnable before me on 25 July 2016 at 9.00 am for continuation of hearing (“the adjourned date”).

2.The father attend Court on the adjourned date.

3.That until further order each of the mother, MS FALLON, born … 1978 and the father, MR BASHANDI, born … 1977 their servants and/or agents be and are each hereby restrained from removing or attempting to remove or causing or permitting the removal or attempted removal of the said child Z, female, born … 2009 from the Commonwealth of Australia and IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of the said child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the said child’s name on the Watch List until the Court orders its removal.

4.IT IS REQUESTED that the Australian Federal Police give force and effect to this order.

5.A copy of this order be faxed immediately to the AFP Operations Coordination Centre by the Melbourne Registry of the Family Court of Australia.

6.The father serve his Application in a Case filed 6 April 2016 as soon as possible.

7.Within 28 days of service of the father’s Application in a Case and evidence in support, the mother file and serve any response thereto.

8.On or before 11 July 2016 the independent children’s lawyer publish to the parties her preliminary view for what orders ought be made on the adjourned date in regards to the father’s Application in a Case.

9.The costs of all parties of this day be reserved.

10.The mother’s application to adduce further evidence in the contravention proceeding also be returnable on the adjourned date.

11.There be liberty to the parties to apply generally.

IT IS DIRECTED:

12.That my reasons for decision be transcribed and when transcribed a copy be placed on the Court file, provided to the parties and sent to the Registrar of the Magistrate’s Court where the intervention proceedings are currently listed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Fallon & Bashandi 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 MELBOURNE

FILE NUMBER: MLC 6992 of 2013

Ms Fallon

Applicant

And

Mr Bashandi

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Ex Tempore

1. This matter comes before me as a mention, the Registry having received documents to be filed on behalf of the father on 6 April 2016 in which he seeks that his application filed on 23 October 2014 be brought on for final hearing on a date “before 3 May 2016”. That is not precisely what he seeks in this application, but I understand that is what he actually seeks from me today.

2. The application is supported by an affidavit, apparently affirmed by the father on 1 April 2016, in which he says that his daughter, the child has now returned to Australia and that the mother has obtained an interim intervention order against him in the Melbourne Magistrates Court. He says:

   I seek urgent orders to travel to Egypt to visit my mother, who continues to suffer from various illnesses, as deposed to in my previous affidavit. In addition, my current wife in Egypt has not seen me since about January in 2013; I have two children in Egypt. My sons are now aged three years old [they are twins] and I have never personally seen them. This situation has been extremely difficult and depressing; one of my sons suffers from a serious medical condition, which is set out in the attached letter.

3. The letter referred to by the father, which appears to be dated 5 July 2015, from a Dr R, presumably in Egypt, says that:

   The child has an undescended testes on the right side that could not be seen by any type of imaging; he is in need of surgical exploration for the right groin for either to descend the testes if present or normal, or to excise if atrophic for fear of future malignant change.

4. The father deposes to having secured passage by aeroplane to go to Egypt on 3 May 2016 and to return on 4 July 2016. I note that he did so in the face of an order precluding his departure from Australia, and without any assurance by any other party to proceedings that there would be consent to him travelling.

5. This matter has a long history in the Court, but has essentially for the last two and a half years centred around the fact that the mother and child were detained in Egypt, against the will of the mother, whilst the father has been in Australia. There is a fairly complex history behind it, but the current proceedings include a contravention application brought by the mother in which it is alleged that the father has without reasonable excuse failed to comply with orders to do all acts and things necessary to return the child to Australia.

6. It has been only in the last month or so that the courts in Egypt, at an appellate level, dissolved orders prohibiting the mother taking the child out of Egypt, and on that basis the child has entered Australia. The father’s position before me and the judges who preceded me has been that the proceedings in Egypt had nothing to do with him and he had no input in the proceedings. The wife contends that is not the case and that the father could have secured the return of the child to Australia at any time if he wished to do so.

7. Today, the independent children’s lawyer seeks a restatement of the current watch list order, which is either agreed or not opposed and, in any event, seems to be in the child’s best interests. There is uncertainty raised by the independent children’s lawyer as to whether the watch order (port alert) in relation to the child has lapsed administratively. Certainly no judicial decision has cancelled the order. To the extent that is may be necessary, it should be reinstated. 

8. The father says that he will leave Australia, and return in July 2016. He wants to leave midway through contravention proceedings. He was being cross-examined in the contravention case in November 2015, when he allegedly became ill and could not continue.

9. The last date that the father was actually cross-examined appears to have been 3 August 2015. When the husband said, through his lawyer, that he could not be cross examined for medical reasons, he was required to submit any medical evidence upon which he relied. Apparently on the date for filing of medical evidence by the father’s solicitors, the father was involved in a motor vehicle accident which his lawyer stated precluded the father from attending to swear affidavit material which had been prepared. It transpired, however, that the traffic accident was some six or so hours after the father was due to attend his solicitor’s office to affirm his affidavit.

10. On 5 November 2015 when the father was represented by Mr Boden, who has been his solicitor for the duration of the proceedings, Mr Boden sought to introduce medical evidence in support of an application to the effect that his client was not medically fit to continue to be cross-examined in the contravention proceedings. Mr Boden’s evidence was to be about the father’s medical condition, competence and capacity to give evidence. That particular order provided for the father to provide that evidence not later than 12 noon on 23 November 2015; that was not done, and has not been done to date. 

11. The matter has returned to Court on various occasions, but on none of those occasions has the father said that he is fit enough to go back into the witness box for the cross-examination to continue, and no evidence has been forthcoming as to why he cannot.

12. On 1 February 2016, it was ordered that by 2 pm on 2 February 2016 the respondent solicitor inform the other parties, in writing, of information about the father’s last appointment with his psychiatrist, Dr I, being the date and time and location of the appointment, and the nature of the appointment, and by whom any referral had been made. I am informed by the independent children’s lawyer that, in spite of her following that up, there has been no information provided.

13. Whilst the father’s application was filed on 6 April 2016, it has not been returned to the parties as sealed. The reason is that, upon receiving the application, contact was made by the Registry with the solicitors for the father and the father’s solicitors were informed that the matter could proceed on 18 April 2016. That was Monday of this week, when I would have been available to hear it. However, the father’s solicitors specifically declined that available date and sought another date. In so doing, they have unfortunately run into a period when I am not available for an extended time.

14. The application in a case will be marked returnable on the date that I am prepared to hear the matter, which is 25 July 2016, at 9 am. I am not back in the Registry for any significant period until July. Counsel for the mother is unavailable until late July. I take it that 25 July 2016 will suffice. Ordinarily, I would not adjourn a matter for the convenience of counsel, however this matter has had a history of many stops and starts and, quite frankly, I would consider it to be unreasonable to have thought that counsel would put their life on hold whilst they are wondering whether part-heard contravention proceedings would be brought back on before me.

15. There have been a number of adjournments necessitated by the father’s alleged inability to continue to give evidence in the proceedings, so the balance of convenience has weighed very much in favour of the father up until now. 

16. I am informed, from the bar table, that there is an intervention order which has been obtained on an interim basis, on the application of Victoria Police, for the protection of the mother and the child. At the moment there is no parenting order in this Court which entitles the father to spend any time, or to communicate in any way, with the child.

17. The father has no parenting application before the Court. His counsel today says that that is because the father has not been able to afford a lawyer. Many people in our community act for themselves; he has clearly chosen not to be one of those people. Nonetheless, there is no entitlement for him to spend time, or to communicate, with the child at this stage. I will direct that when these reasons for decision are transcribed, they be sent to the Magistrates Court before which the intervention proceedings are currently listed. 

18. The order which prohibits the father from leaving Australia was made for the purpose, possibly amongst others, of ensuring that the father remained in the jurisdiction and on hand to abide any order of this court connected with securing and to facilitate the child’s return to Australia.

19. The mother opposes a discharge of the order prohibiting the father from leaving the jurisdiction.

20. With confirmation that the child has returned to Australia, at least one basis for the prohibition against the father’s travel no longer exists. However, there is further reason why it would be inappropriate for the father to leave the jurisdiction at this time. That is, the father:

    a)has been charged with having contravened an order of the court;

    b)has been found to have a case to answer on the contravention, and

    c)is partway through being cross-examined by counsel for the mother.  

21. The cross-examination of the father was held in abeyance on the father’s application and to enable him to gather medical evidence about his medical or mental health in support of his application that further cross-examination not be allowed. As indicated, to date, the father has failed or neglected to adduce that evidence.

22. Contravention of an order of the family courts is a serious matter for which the consequences can be very serious and include a term of imprisonment.  

23. The cross-examination of the father should recommence as soon as possible providing he is competent to give evidence.

24. As indicated, the father’s application filed 6 April 2016 will be listed before me on 25 July 2016, by which time the mother and independent children’s lawyer will have been accorded procedural fairness in respect of this new application which the father seeks be heard. Of course, the father will have had even more time in which to put before the court the medical evidence upon which he relies in relation to his fitness to be cross-examined.

I certify that the preceding twenty four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 20 April 2016

Legal Associate:

Date:  12 May 2016