Fallon & Bashandi
[2013] FamCA 672
•9 September 2013
FAMILY COURT OF AUSTRALIA
| FALLON & BASHANDI | [2013] FamCA 672 |
| FAMILY LAW – INJUNCTIONS – Injunction refusing permission to leave Australia where wife and child in Egypt and unable to leave because of travel ban imposed by that country at the request of the husband – Jurisdiction to make order. FAMILY LAW – ORDERS – Question of ex parte orders made on evidence which was questionable. FAMILY LAW – CHILDREN – mother and child in Egypt and unable to leave – appropriate power to make order for child to live with the mother pending further order. |
| Family Law Act 1975 (Cth) |
| Glover and Walters (1950) 80 CLR 172 Goode and Goode (2006) FLC 93-286 Khademollah v Khademollah (2000) 26 Fam LR 686 ; (2000) FLC 93-050 ; [2000] FamCA 1045 |
| APPLICANT: | Ms Fallon |
| RESPONDENT: | Mr Bashandi |
| FILE NUMBER: | MLC | 6992 | of | 2013 |
| DATE DELIVERED: | 9 September 2013 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Cronin J |
| HEARING DATE: | 2, 6 and 9 September 2013 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms O'Connell |
| SOLICITOR FOR THE APPLICANT: | Oakfair Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Boden |
| SOLICITOR FOR THE RESPONDENT: | Starnet Legal |
Orders
The wife is permitted to formally advise the Australian Government authorities along with the Consulate-General of the Arab Republic of Egypt in Melbourne of the precise details of the case including orders and in due course, these reasons.
The husband forthwith do all acts and things necessary to complete a power of attorney with the assistance of the Consulate-General of the Arab Republic of Egypt in Melbourne (if he or she will so assist) to authorise and direct a person of his choice to take all necessary steps to withdraw the case against the wife (Ms Fallon) and the child Z which bans their travel from Egypt and for that purpose, to set out the relevant number of the case and further, that the husband sign any necessary document for the purposes of supporting that power of attorney indicating that he has no objection for the said Ms Fallon and the child Z to travel immediately out of Egypt.
That the husband Mr Bashandi born … 1977 (male) is restrained by injunction from leaving the Commonwealth of Australia and IT IS REQUESTED THAT the Australian Federal Police place and retain pursuant to the order of 20 August 2013 the name of Mr Bashandi on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain his name on the Watch List UNTIL FURTHER ORDER OF THE COURT.
That the husband forthwith comply with paragraph 3 of the orders of the Federal Circuit Court of Australia made on 20 August 2013 and surrender all and any passports he has to the Registrar of the Family Court of Australia at the Melbourne Registry.
That until further order, the order made 20 August 2013 is varied for the child to live with the wife.
That the husband has liberty to apply at any time on short notice to Justice Cronin to discharge paragraph 3 of these orders.
The wife has liberty to apply on short notice to seek further orders for the implementation and enforcement of these orders.
The application of the wife filed 20 August 2013 and the response of the husband filed 6 September 2013 be adjourned to a Registrar’s Directions Hearing at 10.00am on 11 October 2013 but the application for interim orders and the interim response thereto are otherwise dismissed.
The husband has leave to also seek to file an amended response seeking parenting orders if he so desires.
That the reasons this day be expedited and be made available to all parties.
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
REASONS FOR JUDGMENT
The wife filed an application in the Federal Circuit Court on 20 August 2013 seeking parenting orders and a variety of injunctions against the husband.
The application was deemed sufficiently urgent by the registrar to list it before the Judge sitting in that Court that day.
The wife convinced the Judge to deal with the application on an ex parte basis. The wife was represented by counsel. It would seem that the wife was not present, she having travelled to Egypt for the purposes of obtaining the return to Australia of the child of the parties. The child Z was born in May 2009 so she is four years old.
At the time the orders were being made in the Federal Circuit Court, the husband was on a small boat off the coast of far north Queensland. How he got there is set out hereafter and, absent any responding material of the wife, the circumstances of his absence leave many unanswered questions.
On 2 September 2013, with the husband then present but with the wife in Egypt albeit represented by counsel here, the Federal Circuit Court Judge transferred to the case to this Court. I heard preliminary issues that afternoon and adjourned the case to enable the husband to obtain legal advice. He did that and filed an affidavit and response.
The wife remains in Egypt apparently unable to return to Australia because she (and the child separately) is the subject of a travel ban placed by authorities in January 2013 at the behest of the husband.
The questions for the Court to immediately determine are:
(a)should orders now be made enabling the provision of orders of this Court to Australian and Egyptian authorities to facilitate any necessary action relating to the return of the wife and the child to Australia?
(b)Should the ex parte injunction made by the Federal Circuit Court precluding the husband from leaving Australia continue indefinitely or be discharged?
(c)Should the husband be ordered to make an application and do any other necessary things to enable the removal of the Egyptian travel bans? or
(d)Should the husband’s application succeed and the wife’s application simply be dismissed?
The history of the proceedings is unfortunately necessary to traverse but before doing so, I want to refer to some apparent media coverage of the family’s plight which was brought to my attention by the husband who attached a report from a newspaper to his affidavit.
Whilst the media publication does not name the parties, it is a fair inference that it relates to this case and family. The significance of the story is that it bridges a divide between the versions of events of the husband and the wife. In the wife’s case, if the description of events in the media story were in train on or around 20 August, why was the Court not told? In the husband’s case, if his description is true, does the wife have “clean hands” such as to justify the injunctive orders against the husband?
It is important to observe that I am deciding this on the evidence of the parties as filed with the Court and the media references just mentioned are matters that I do not intend to give weight to because, at best, I would be drawing inferences only.
The various facts of this case are controversial and it is difficult to make findings or indeed draw inferences from them. I shall refer to the authorities in a moment but suffice to say, it is to the uncontroversial matters that a Court in a case such as this, should look.
The application of the wife was filed on 20 August 2013.
Section 69E of the Family Law Act 1975 (Cth) (“the Act”), provides a jurisdictional basis for the Court to exercise its powers to make orders under Part VII of the Act.
Section 69E says that proceedings may be instituted in relation to a child only if one of a variety of factual circumstances is proved. Those include that the child was present in Australia on the day on which the application was filed (and that was not the case here), or that the child is an Australian citizen on that relevant day (and that was the case here), or a parent of the child was present in Australia on the relevant day (and in the case of the husband but not the wife, that was the case), or a party to the proceedings is an Australian citizen (and the wife certainly was), or it would be in accordance with a treaty or arrangement in force between Australia and an overseas jurisdiction, or the common law rules of private international law, for the court to exercise jurisdiction in the proceedings.
No question of jurisdiction was disputed by either party.
The background (as uncontroversially described as possible) is as follows. The wife was born in Australia and the husband in Egypt. The wife described herself as a homemaker and the husband described himself as unemployed although the wife described him as a professional in Egypt. The husband has permanent residency in Australia.
When the husband appeared before me on 3 September, he said he did not understand the process and had been unable to read the documents given to him. Despite that, his English was very good and his responses gave every indication that he understood the questions he was asked.
The husband arrived in Australia as a student in November 2007 to study hospitality. Both parties being of the Muslim faith, they met at a mosque that the wife attended. That meeting was in May 2008. The husband said they were married in an Islamic ceremony in July 2008 whilst the wife described registration of the marriage by a civil ceremony in October 2008. For the purposes of jurisdiction, the wife filed a marriage certificate which confirmed her evidence.
The child was born in May 2009.
Not long after the marriage occurred, both parties described problems. The wife said that the husband’s long hours of study and her property settlement with her former husband caused stress. The husband agreed and referred to the support he was providing to the wife as she mediated with the Sheikh but also attended court hearings.
The parties had a very different view of the conduct of the other and as earlier indicated, I cannot make any findings about that at this interim stage.
In February 2011, the husband left Australia for Egypt, the reasons for which are disputed. He remained there until (it would seem) about January 2013.
In December 2012, the wife had flown to Egypt for what she described as a short holiday. She took the child with her and the family was reunited. The length of time in Egypt is confusing.
The wife claimed that during that time, the husband forced her to see a psychiatrist in Egypt. The husband denied the force but agreed she attended and said it was of her own volition. Just why the wife would do that remains unclear but there is little doubt that at some unspecified time, she signed an authority to the X Hospital in Melbourne to provide to a Dr A in Egypt a copy of her psychologist’s file arising out of her hospitalisation in 2009 with the birth of the child. Because I do not have a responding affidavit of the wife, I do not know what that is all about but it would seem odd that the visit to a psychiatrist was forced and then the wife would sign an authority in relation to the provision of her psychologist’s notes from some years before. Neither party explained why it was necessary for any treatment let alone specific treatment and the wife’s evidence was that she was prescribed medication by the Egyptian medical practitioner but did not take it.
Counsel for the wife tendered a report from the Australian Embassy in Cairo setting out the wife’s current circumstances there and that document was admitted into evidence with the consent of the solicitor for the husband. What that shows is that in January 2013, a “court ruling” was made by an Egyptian Court placing a travel ban on both the wife and the child preventing them from leaving Egypt.
Despite the travel ban, the wife did leave Egypt and with the husband, in either January or March 2013. The exact month is unclear on the evidence. There is some importance in that because of the travel bans and how the wife left Egypt.
It was common ground that between December 2012 and January 2013, a decision was made for the child to remain in Egypt with the husband’s family. The wife said that the decision was a unilateral one by the husband that they would leave the child behind to learn to speak Arabic and to learn the Egyptian Culture. She said this proposed stay was for two months.
The husband’s version was that the parties agreed for the child to “remain in Egypt a little longer” to better get to know her family and learn the Arabic language better. I pause to make two comments:
(a)that the child was then aged three years old.; and
(b)the husband’s definition of a “little longer” seems pliable because he then said that the wife and he agreed that they could visit the child at any time and that the child would be returned to Melbourne when they (by which I inferred he meant he and the wife) felt the child had sufficiently grasped the Arabic language and was “able to speak proficiently in it”.
Whilst I cannot make findings about that evidence, the version of the wife seems more plausible having regard to the child’s age, the absence of her parents and what then followed.
What is clear is that the husband and wife left Egypt in or around January 2013. The wife made no reference to what immediately thereafter occurred other than to say she arrived back in Melbourne without the child in March. The husband filled in the gap in that period by saying that they stopped over in Southeast Asia for a few weeks to visit the wife’s family. That too is a critical fact because if the wife was distressed about the absence of the child but was in the bosom of her own family, why was not something mentioned about it or indeed done about it?
The wife maintained that after returning to Australia, the husband allowed her to speak to the child only twice per week and forbade her permitting the child talking to the child’s two half-siblings. The husband denied all of this controlling behaviour. Indeed, he said that he was insistent that there must be a relationship between the siblings.
The other controversial issue lies in the assertion of the wife that the husband was controlling and he pointed to the fact that the wife spoke to his family in Egypt and got along well with them. From instructions of the wife through her father who is apparently with her in Egypt at the moment, to counsel for the wife, that was hotly denied.
The husband’s evidence in summarising the current position is rather confusing but I quote verbatim what he said:
At no time has the wife come to me and demanded that our daughter be returned to Egypt (sic). Of course I am aware that the wife misses our daughter and I miss her a lot as well. However, I strongly believe that being in Egypt is in the daughter’s best interests, as she is learning her language and her culture.
The husband went on to say:
If the wife had come to me and demanded [the child] be returned to Melbourne, I would have had a reasonable and calm discussion with the wife to remind her of why we allowed [the child] to remain in Egypt in the first place.
Having regard to his earlier statement about the proposed duration of the child’s stay in Egypt and its purpose, the last quotes of the husband have a ring of unreality about them. Again I stress however that I am not in a position to test the evidence but those comments not only do not make a lot of sense having regard to the respective orders that each seeks but are also inconsistent with the objects and principles of the law relating to children in Australia. The fundamental tenet of the Australian law is that children have a right to have the benefit of both parents in their lives and having a meaningful relationship with them. True it is that children are entitled to enjoy their culture and that of their parents but that must be seen in the context of enjoying their culture in a family environment. That is not happening for the child at the moment.
It was in that setting and with that background that the travel bans in Egypt came into existence.
The wife made no reference to any restrictions on her travel in Egypt. That makes sense because had she known, it is implausible that she would have left Egypt in January without some mention of how the ban was then overcome. Secondly, why would she have then returned to a country from which she would not have been able to leave?
In his evidence, the husband said:
In order to better protect our daughter while we were away, I arranged to have [the child’s] name added to the no fly list in Egypt.
The simplicity of that statement belies the problems that lurk beneath it for the husband in these proceedings. The husband’s solicitor was unable to explain from whom the child was to be protected such as to require the ban other than the wife. If so, why? If the “arrangement” was simple, why is it now suggested by the Australian officials in Cairo that a court needs to be involved? There is no suggestion in the husband’s evidence that the wife was aware of this court procedure let alone the ban. If the husband and the wife were leaving Egypt in a happy frame of mind and as a couple, why would the wife not have been aware that the husband felt it necessary to place a ban on some unnamed person removing their daughter? Even so, if the officials in Cairo are correct now, why is the ban on the wife? The husband’s evidence did not address that ban if indeed it exists. I pause to mention that it was both practitioners who said that the Cairo statement could be admitted into evidence.
The vagueness of the husband’s evidence about all of this heightens my concern about whether the Court is being told the full story by the husband. That said, the absence of comprehensive factual material from the wife is equally concerning. It cannot be said in this case that the wife had to rush to obtain the orders she did on 20 August; she had been in Melbourne since March.
The wife has filed a parenting application. It sought orders that the husband ensure the return of the child to Australia and that upon the child returning to Australia, the wife have sole parental responsibility and the daily care for her. The husband’s only response was for a dismissal of that application and a discharge of the ex parte orders. As his solicitor reflected, if the child was returned, the husband would be seeking parenting orders.
As the application for final orders is extant because of the interim orders which contemplated a further and final parenting hearing in the future, it would not be proper to simply dismiss the wife’s application now.
Whilst there were interim orders made by the Federal Circuit Court, they were made until further order. A dismissal of the husband’s interim application or a refusal of the Court to discharge those interim orders means that the orders remain extant. Before turning to the injunctive order and its continuation by a refusal to discharge it, it is helpful to look at what interim parenting orders should be made on this evidence.
Despite the very truncated hearing, the paucity of evidence and the need to regulate the proceedings quickly, the Court must still regard the best interests of the child as the paramount consideration in deciding what (if any) interim parenting orders should be made (Goode and Goode (2006) FLC 93-286).
In Goode, the Full Court indicated that a court dealing with such an application should,
·Identify the competing proposals;
·Identify the issues in dispute;
·Identify any agreed or uncontested relevant facts; and
·Consider the matters in s 60CC that are relevant and if possible make findings associated with those provisions.
Dealing with those sequentially, there are no competing proposals because the husband simply seeks that the court not make any parenting orders other than to discharge the extant interim orders. The issues in dispute are clear but they remain essentially about the husband’s obligation to return the child and consequently, the wife needs to return as well. That leads to the question in a moment of whether ordering the husband to remove the travel bans (if that is what he can do) is a parenting order. The relevant facts are clear as I have articulated them. I shall turn to the s 60CC factors in a moment.
Section 64B(2) of the Act provides that a parenting order may deal with one or more of the following:
(a)the person or persons with whom a child is to live;
(b)the time a child is to spend with another person or other persons;
(c)the allocation of parental responsibility for a child;
(d)if 2 or more persons are to share parental responsibility for a child--the form of consultations those persons are to have with one another about decisions to be made in the exercise of that responsibility;
(e)the communication a child is to have with another person or other persons;
(f)maintenance of a child;
(g)the steps to be taken before an application is made to a court for a variation of the order to take account of the changing needs or circumstances of:
(i)a child to whom the order relates; or
(ii)the parties to the proceedings in which the order is made;
(h)the process to be used for resolving disputes about the terms or operation of the order;
(i)any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.
There is already an order satisfying the terms of s 64B(2)(a) even if it is not operative until the child is returned to Australia. The Federal Circuit Court must have been satisfied that it was proper to make that order and on the evidence otherwise set out in the wife’s affidavit, she has until she left Egypt in January, been the child’s primary attachment figure.
The power to make an order for the husband to implement whatever steps are required to ensure the return of the child to Australia can be found in s 64B(2) (i). The reason why it is falls within an aspect of care, welfare or development of the child is because she is currently away from her country of birth and, on what seems to be the evidence from the Consular officials in Cairo, in her mother’s care, absent her father and unable to return to the country where both parents would, at least for the time being, live. In my view, s 64B(2)(i) is sufficiently wide to include an order relating to the husband removing the travel bans in Egypt if it can be shown that it is in the best interests of the child for her mother to be also able to travel to Australia. That depends upon whether the parenting orders relating to the time between the child and the wife should be made.
Section 60CA of the Act provides that in deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
In my view, for whatever reason and on whatever basis the Federal Circuit Court made the orders on 20 August, there is now sufficient evidence to satisfy me that the child is in her mother’s care but in circumstances which are not appropriate for her care, welfare and development which is a circumstances at least to some degree within the husband’s control because of the flight ban.
In making the determination I just have, I find as best I can on the evidence of both parties that of the matters set out in s 60CC, there is disputed evidence about the problems of the wife’s telephone calls to the child along with the child’s distress at her mother’s absence. There is also the husband’s stated desire to be able to spend time with the child. All of that indicates there is clearly a meaningful relationship between the child and both parents but that their unique circumstances are making it difficult for the child to benefit from that meaningful relationship.
Section 60CC however also requires, as a primary consideration, for the Court to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. I am uncertain what the exact circumstances are but they include that the wife and the child were reunited apparently in traumatic circumstances which the husband says he knows little about. The accusation which is not in evidence but expressed as a concern in the first hearing was that people from the village and the husband’s family were involved. I cannot make that finding. That needs urgent attention and the best way for that to be resolved is for the wife and child to have any restriction on travel under the husband’s control removed so that they can return to Australia.
The nature of the relationship between the child and her parents is also unclear. The husband’s position, if accepted by the Court, would not enable most of the matters in s 60B to be carried out. Those matters need considering here because they are a guide to what is in the child’s best interests. That section provides:
1. The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Clearly, the husband’s view about language and culture are covered by those provisions but there are many issues upon which he has remained silent.
The uncontroversial evidence is that the wife has had a much greater role in the child’s life than has the husband. He highlighted his significant absence and the wife’s evidence shows that she went to Egypt and, for reasons which remain obscure, left the child there. I can conclude however, that the wife’s role was much greater than that of the husband at least until then and more importantly, the husband’s recent absence from the child’s life must mean that his role has been modest.
One of the considerations in s 60CC is to examine parental responsibility. In my view, a parent who seems to be saying that it is appropriate to leave a child of the child Z’s age with extended family to the exclusion of the mother, may be open to criticism. I am not sure that I can make any finding about that at this time but the control of that evidence and any proposal about when this short term language and cultural involvement for the child would end is in the hands of the husband and he has not assisted me.
Section 65D set out that in proceedings for a parenting order, the court may, subject to the presumption of equal shared parental responsibility when making parenting orders, make such parenting order as it thinks proper. I emphasis the word “proper”. The note to that section provides that Division 4 of Part XIIIAA (International protection of children) may affect the jurisdiction of a court to make a parenting order. Whilst I raised that question, neither party argued that, at least for this determination, I should be concerned about it.
As I indicated, s 60CA of the Act provides that in deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration. In those circumstances, I find it is proper to make an order in the terms I shall announce because it is in the child’s best interests and in particular, her interests for her mother to return as well.
I turn then to the injunctive issue. It was not argued before me that there was no jurisdiction or power but rather whether it should have been exercised by the Federal Circuit Court. The question is now whether that ex parte order restraining the husband from leaving Australia should be continued.
Before examining the legal position, it is important that I refer to the husband’s version of what happened to him over a number of days in August during which time, it would seem, the wife left Australia. Counsel for the wife said she and her instructor knew nothing about the husband’s asserted plight at all but there are coincidences that leave me with distinct disquiet about whether the wife has what equity would describe as clean hands. I do not propose to set out the lengthy factual detail of the husband’s evidence. It is sufficient to say that if he reports his plight to Australian police, it would certainly seem that some offences have been committed. My dilemma is that I do not know whether they have anything to do with the wife.
It seems the husband was lured to far North Queensland and taken on a boat off the mainland on a ruse about being given work for some Egyptian nationals who needed translation services and security. The trip came to an end and he would appear on his version, to have been dumped back in Cairns. During his absence from Melbourne, the wife seems to have left Australia. It may be just a coincidence that during that time, the husband’s mobile telephone was removed from him and he was otherwise unable to communicate with anyone. If this was a part of some plan by the wife orchestrated by the person named in the newspaper article provided by the husband, it may be (and I stress it no higher than that) the wife did not tell the Court of that subterfuge. I can understand why she might not want the husband to know about what she was doing but she made the application to Judge Connolly on an ex parte basis.
Because there is no concession by counsel for the wife nor any evidence as to what all of that was about, I consider it is a matter that requires future consideration but it does not affect my immediate determination.
The husband’s position in relation to getting the child back to Australia was that he would give an undertaking to return his daughter. That was rejected by the wife. It is important therefore to look at the powers of the Court to have made the various injunctive orders in the first place and then decide whether they should be extended both as to time and nature.
The extent of the power to restrain someone from travelling outside of Australia was not argued by either party and seemed to be assumed because an order had previously been made. I have some disquiet about the wife’s position because it seemed to be her case that almost unrestricted orders could be made. I disagree with that approach particularly where the infringement on personal liberty is the issue. Absent reasons for that order being made, it is not only important to look at the factual basis put by (and denied by) a party but also to ensure that the Court has the power to make the order sought.
In Glover and Walters (1950) 80 CLR 172 Dixon J had no doubt the High Court of Australia had the power to issue a writ of ne exeat colonia. The translation of that means a writ to prevent one party to a dispute from leaving the court's jurisdiction in a proper case. Usually bail or security adequate to the nature of the case was ordered. Dixon J made clear the writ was not to be issued except with care and where what he described as “real ground appears for believing that the defendant is seeking to avoid the jurisdiction or for apprehending that if the defendant is allowed to depart, the plaintiff will lose his debt or be prejudiced in his remedy.”
Although neither practitioner pointed to the specific power in the Act, I consider it lies in s 114. Section 114(3) of the Act provides the power for interlocutory orders or otherwise and includes an injunction in aid of the enforcement. The basis for making such a wide order is said to lie in any case in which it appears to the court to be “just or convenient to do so”, either “unconditionally or upon such terms and conditions as the court considers appropriate of a decree”.
Australia has ratified the International Covenant on Civil and Human Rights, The International Covenant on Civil and Political Rights, and The Universal Declaration of Human Rights all of which relate to a person’s freedom of movement and, importantly in this case, freedom to leave a country. The power under s 114(3) of the Family Law Act if relied upon as the power must be exercised not only cautiously but also in the light of Australia’s obligations under the conventions.
Combining those principles and the authority of Dixon J in Glover, the serious restraint on keeping the husband here in Australia requires the wife to establish the strong probability that the orders she currently has, or would reasonably anticipate she will have, will be thwarted if the husband’s freedom was not curtailed. The wife must show that there is sufficient evidence to satisfy the Court that it should not accept the husband’s undertaking that he will return.
Albeit a property case, the Full Court of this Court in Khademollah v Khademollah (2000) 26 Fam LR 686 ; (2000) FLC 93-050 ; [2000] FamCA 1045 upheld a similar injunction granted by the trial judge which restrained a party from leaving the country as part of final property orders. The trial judge had found that the restrained party would not comply if he was given the opportunity to avoid that responsibility. Bearing in mind that finding and the fact that it was made after a contested trial, the Full Court saw no justification to interfere particularly when the trial judge had provided a mechanism for the case to be relisted.
There are a number of contentious matters here but the most concerning aspect is that the child and the wife are both precluded from leaving Egypt. The husband in his evidence said that he strongly denied it was his intention to keep the child “permanently” in Egypt yet he was silent on the issue of the return of the wife or his role in removing any flight ban. Accepting the evidence of the Australian Embassy in Cairo, the potential for that problem to be resolved lies in the hands of the husband. Because I have no idea how he obtained that order and it would seem probable that the wife did not know of it, together with his silence on whether he would do anything now to remove the restraint, on the balance of probabilities, I consider it likely that he would not comply with the extant order made by Judge Connolly on 20 August 2013. I specifically also take into account the husband has no significant ties, business, employment, family or children here. He said that he was afraid for his safety here in Melbourne although I do not understand why, and his knowledge of English was limited. His affidavit concluded with a statement that he did not know where the wife was in Egypt and whilst that may be so, the Australian officials seem to have that knowledge. His last statement was that he could not do anything to ensure the immediate and safe return of the child in circumstances where he did not even know if she was safe.
Nothing I heard from the husband’s counsel indicated that as the Australian officials knew where she was, the husband would arrange the removal of any restriction on the child. Whilst his wife is “held” on Egypt, there is nothing that binds the husband here. I have therefore little confidence that the husband would comply with orders if permitted to leave. All of the apparent requirements to remove the travel bans can be organised from Australia. Nothing the husband said indicated he would comply with orders; his position was simply that the proceedings should be dismissed. As I indicated, that would not be proper.
I also observe that the Federal Circuit Court ordered the husband to hand in his passport. He said nothing more than he could not find it and no explanation was given why that was so.
The wife also sought the appointment of an Independent Children’s Lawyer. I have no evidence about that nor any indication of how such an order would be facilitative of the interests of the child. It is therefore premature to make the order. I propose to adjourn the proceedings to a registrar’s hearing but otherwise to give both parties liberty to apply on short notice both as to enforcement and variation of these orders. Those applications will come back to me.
Balancing all of those matters, it is proper and appropriate for the Court to make orders:
(a)first, to permit the wife to formally advise the Australian Government authorities along with the Consulate-General of the Arab Republic of Egypt in Melbourne of the precise details of the case including orders and in due course, these reasons;
(b)secondly, to order that the husband forthwith do all acts and things necessary to complete a power of attorney with the assistance of the Consulate-General of the Arab Republic of Egypt in Melbourne if he or she will so assist to authorise and direct a person of his choice to take all necessary steps to withdraw the case against the wife (Ms Fallon) and the child Z which bans their travel from Egypt and for that purpose, to set out the relevant number of the case and further that the husband sign any necessary document for the purposes of supporting that power of attorney indicating that he has no objection for the said Ms Fallon and the child Z to travel immediately out of Egypt;
(c)Thirdly that the husband Mr Bashandi is restrained by injunction from leaving the Commonwealth of Australia and IT IS REQUESTED THAT the Australian Federal Police place and retain pursuant to the order of 20 August 2013 the name of Mr Bashandi on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain his name on the Watch List UNTIL FURTHER ORDER OF THE COURT;
(d)Fourthly that the husband forthwith comply with paragraph 3 of the orders of the Federal Circuit Court of Australia made on 20 August 2013 and surrender all and any passports he has to the Registrar of the Family Court of Australia at the Melbourne Registry;
(e)Fifthly, that the husband has liberty to apply at any time on short notice to Justice Cronin to discharge (the third order);
(f)Sixthly, the wife has liberty to apply on short notice to seek further orders for the implementation and enforcement of these orders;
(g)Seventhly, the application of the wife filed 20 August 2013 and the response of the husband filed 6 September 2013 be adjourned to a registrars directions hearing on a date to be fixed but the application for interim orders and the interim response thereto are otherwise dismissed. I give leave to the husband to also seek to file an amended response seeking parenting orders if he so desires;
(h)Finally, that the reasons this day be expedited and be made available to all parties.
I certify that the preceding Seventy Five (75) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 9 September 2013.
Associate:
Date: 10 September 2013
3
2
1