GOEL & MAHLA

[2015] FCCA 3522

FEDERAL CIRCUIT COURT OF AUSTRALIA

GOEL & MAHLA [2015] FCCA 3522

Catchwords:
FAMILY LAW – Children – parenting orders – interim orders – application for recovery order – parental responsibility – sole parental responsibility – Family Law Watch List – where father claims mother removed children from Australia without his knowledge or consent – where father claims that mother forged his signature on Minutes of Consent Orders at a Local Court – where father claims that mother forged his signature to obtain passports for the children – where father claims that mother changed the surnames of the children without his knowledge or consent.

FAMILY LAW – Children – injunction – application for injunction under Family Law Act 1975 (Cth) s.68B refused.

FAMILY LAW – Injunction – application for injunction to restrain party from dealing with or disposing of property – caveat – removal of caveat – security for costs.

Legislation:

Australian Passports Act 2005 (Cth), s.11

Family Law Act 1975 (Cth), ss.44, 60CA, 61DA, 65Y, 67Q, 68B, 68C, 114, 117

Cases cited:
Goode & Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286

Applicant: MR GOEL

Respondent: MS MAHLA

File Number: SYC 6590 of 2015

Judgment of: Judge Scarlett

Hearing date: 7 December 2015

Date of Last Submission: 7 December 2015

Delivered at: Sydney

Delivered on: 16 December 2015

REPRESENTATION

Counsel for the Applicant: Ms Haughton

Solicitors for the Applicant: Soden Legal

Solicitor for the Respondent: Ms El Ali

Solicitors for the Respondent: Thurlows Family Lawyers

ORDERS

1. IT IS DECLARED THAT:

   (a)The Applicant Father and the Respondent Mother were married in a civil ceremony in Australia on (omitted) 2008;

   (b)The children of the marriage X born (omitted) 2009 and Y born (omitted) 2010 were born in Australia.

   (c)The parties divorced on 14 July 2012.

   (d)The Respondent Mother removed the children from the Commonwealth of Australia on a date between 16 September and 23 September 2015 without the Applicant’s knowledge or consent.

UNTIL FURTHER ORDER

1. The children X born (omitted) 2009 and Y born (omitted) 2010 are to live with the Applicant Father.

2. The Applicant is to have sole parental responsibility for the children X and Y.

3. A Recovery Order in accordance with section 67Q of the Family Law Act 1975 is to issue.

4. The Marshall, Deputy Marshall, all officers of the Australian Federal Police and all officers of the Police Forces of the States and Territories of Australia are authorised and directed with such assistance as they require and if necessary by force:

   (a)to stop and search any vehicle, vessel or aircraft, and search any premises or place for the purpose of finding the children X and Y;

   (b)to recover the children;

   (c)to deliver the children to the Applicant father; and

   (d)to arrest without warrant the mother in the event that the mother again removes or takes possession of the children.

5. Any member of the Australian Federal Police and any officer of a Police Force of any of the States and Territories of Australia is empowered to enforce these Orders.

6. The Applicant and the Respondent by themselves, their servants or agents are restrained from removing or attempting to remove the children X (a female) born on (omitted) 2009 and Y (a male) born on (omitted) 2010 from the Commonwealth of Australia.

7. IT IS REQUESTED that the Australian Federal Police give effect to the preceding Order by placing the names of the said children on the Family Law Watch List in force at all points of arrival in the Commonwealth of Australia and maintain the children’s names on the Watch List for a period of three (3) years.

8. Upon the expiration of the period referred to in the immediately preceding Order and subject to any further order of competent jurisdiction, the Australian Federal Police will cause the removal of the children’s names from the Watch List.

9. The Respondent is hereby restrained from disposing of, dealing with, encumbering or further encumbering her interest in the property at Property F being the whole of the land and all its improvements contained in Certificate of Title Folio Identifier (omitted).

10. The Respondent is restrained from doing any act or thing which would cause the removal of the Caveat being dealing number (omitted) including and not limited to the issue of a lapsing notice.

11. By way of security for costs, it is ordered that upon the sale of the property at Property F in the State of New South Wales all net proceeds of sale are to be paid into the trust account of the Applicant’s solicitors Soden Legal Pty Ltd.

12. For the purposes of the immediately preceding Order, Soden Legal Pty Ltd is authorised to release any funds necessary upon receipt of the appropriate invoice from the Applicant.

13. The Applicant’s solicitors are granted to photocopy access for all subpoena records with such records permitted to be produced to any authorities or legal representatives in India as may be required to assist in the location of the recovery of the children.

14. The Principal Registrar is requested to forward a copy of the Reasons for Decision to the Commonwealth Director of Public Prosecutions.

15. The Respondent is to pay the Applicant’s costs.   

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 6590 of 2015

MR GOEL

Applicant

And

MS MAHLA

Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application by the Father of two children, X, aged 6, and Y, aged 5, for declarations and a variety of parenting orders and injunctions, arising from the fact that the Respondent Mother has left Australia with the children. The Father claims that she did so without his knowledge or consent.

2. The Mother denies any wrongdoing.

Orders sought

1. The Father, by his Amended Application filed on 4^th December 2015, seeks the following Interim Orders:

   1.  That the matter be heard Exparte.

   2.  That declarations be made as follows:

   a.  That the parties were married in a civil ceremony in Australia on (omitted) 2008.

   b.  It is declared that the children of the marriage namely X born (omitted) 2009 and Y born (omitted) 2010 (“the children” were born in Australia.

   c.  It is declared that the parties divorced on 14 July 2012.

   d.  It is declared that the children lived in Australia with the mother and spent time with the father until the mother forged the father’s signature on the Passport Applications for the children in September 2015.

   e.  The mother removed the children from the Commonwealth of Australia sometime between 16 September and 23 September without the father’s consent or knowledge.

   f. It is alleged by the father that the mother forged his signature on a Court Order dated 3 September 2013. That Order has not yet been set aside. On that basis, as an Order of the Court, the mother is in breach of Section 65Y of the Family Law Act. A breach of this section carries a penalty of imprisonment for 3 years.

   That Orders be made as follows:

   3.       (Not pressed)

   4.       (Not pressed)

   5.       (Not pressed)

   6.       (Not pressed)

   7.       The children are to live with the father.

   8.The father is to have sole parental responsibility for the children.

   9.       For the purpose of Order 8, a Recovery Order is issued.

   10.The Marshall, Deputy Marshall, all officers of the Australian Federal Police and all officers of the police forces of all the states and territories of the Commonwealth of Australia be authorised and directed with such assistance as they require and if necessary by force :

   (a)be authorised and directed, with such assistance as he or she requires or they require and, if necessary, by force:

   (b)to stop and search for[1] any vehicle, vessel or aircraft, and search any premises or place for the purposes of finding the children;

   [1] sic

   (c) to recover the children;

   (d)     to deliver the children to the Applicant father; and

   (e)to arrest, without warrant, the mother in the event that the mother again removes or takes possession of the children.

   (f)Any member of the Australian Federal Police and all officers of the police forces of all of the states and territories of the Commonwealth of Australia be empowered to enforce these orders.

   11.That pursuant to section 68B of the Family Law Act 1975 an injunction issue and the mother be restrained from entering or remaining in any place of residence or education of the children, harassing, stalking, intimidating or otherwise approaching the father and the children.

   12.In the event that the mother does not comply with Order 11 and a police officer believes, on reasonable grounds, that the injunction has been breached, then such police officer is authorised to arrest the mother without warrant pursuant to the provisions of section 68C of the Family Law Act 1975.

   13.Until further order the applicant and the respondent, by themselves, their servants or their agents are restrained from removing or attempting to remove the children from the Commonwealth of Australia.

   14.The Marshal of the Federal Circuit Court of Australia and all officers of the Australian Federal Police and of the police forces of the states and territories of the Commonwealth of Australia are requested to give effect to these orders and to take all necessary steps to restrain either party from removing or attempting to remove the said children from the Commonwealth of Australia.

   15.Until further order the Commissioner of the Australian Federal Police and the Secretary of the Ministry of Immigration take all necessary steps to immediately place the said children’s names AND the mother’s name on the airport watch list, also known as the PACE Alert system, at all points of arrival and departure in the Commonwealth of Australia.

   16.The Australian Federal Police maintain an airport watch of the said children on all flights leaving any international airport in all states and territories of the Commonwealth of Australia.

   17.The Australian Federal Police and the Police Forces of the States and Territories of the Commonwealth of Australia assist in the implementation of, and give effect to, these orders.

   18.That the mother pay the father’s costs of this case including any costs of and incidental to these proceedings and the recovery of the children including any travel costs of the father and the children, accommodation or legal fees for both Australian and International legal representatives on an indemnity basis.

   19That pending further Order, the wife be and is hereby restrained from disposing of, dealing with, encumbering or further encumbering her interest in the property at Property F being the whole of the land and all its improvements contained in Certificate of Title Folio Identifier (omitted).

   20.Until further Order, the wife is hereby restrained from doing any act or thing which would cause the removal of the Caveat being dealing number (omitted) including and not limited to the issuing of a lapsing notice.

   21.That by way of security for costs, the Court directs that upon the sale of the property referred to in Order 20 herein, all proceeds of sale are to be paid to the trust account of the father’s solicitors Soden Legal Pty Ltd.

   22.For the purpose of Order 21, Soden Legal Pty Ltd is authorised to release any funds necessary upon receipt of the appropriate invoice from the father.

   23.That the father’s solicitors be granted photocopy access for all subpoena records with such records permitted to be produced to any authorities or legal representatives in India as may be required to assist in the location and recovery of the children.

   24.    (Not pressed).

2. By her Response filed on 2^nd November 2015 the Mother seeks the following Interim Orders:

   1.  That the Applicant Father’s Application be dismissed.

   2. that the Applicant Father pay the Respondent Mother’s costs of and incidental to this case on an indemnity basis.

   3. That the mother return to Australia with the children X, born (omitted) 2009, and Y, born (omitted) 2010 when and until the Applicant’s[2] mother, Ms S, no longer requires her care and assistance.

   4.  Any other orders the Court sees fit.   

   [2] sic

Evidence and Submissions

1. The Father relied on his affidavit of 24^th November 2015 and the affidavits of Ms J of 3^rd November 2015 and Mr A of 2^nd November 2015.

2. The Mother relied on her affidavit of 31^st October 2015. The Mother did not attend Court.

3. The Father deposed that:

   a)He was born on (omitted) 1976 and is 38 years old;[3]

   b)The Respondent was born on (omitted) 1985 and is currently 30 years of age;[4]

   c)The parties have two children, X, born on (omitted) 2009, aged 6, and Y, born (omitted) 2010, aged 5;[5]

   d)The parties married in 2008, separated on a final basis in 2011 and were divorced in 2012.[6]

   [3] Affidavit of Mr Goel 24.11.2015 at paragraph [1]

   [4] Ibid at [2]

   [5] Ibid at [3]

   [6] Ibid at [4]

4. The Father stated that when he commenced proceedings, on 1^st October 2015, he was of the belief that there were no parenting orders in place, however:

   On 12 October 2015 however, being the first return date for this case, Ms Mahla’s lawyer (omitted) gave my solicitor a copy of consent Orders that were purportedly made by consent by the Sutherland Local Court in[7] 3 September 2013. I annex hereto and mark with the letter “A” a true copy of the document.

   6. I say that those orders were made without my knowledge or consent and I did not sign any documents to enable those Orders to be made. The signature that purports to be made on the foot of the document is not mine. I annex hereto and mark with the letter “B” a true copy of my current passport and previous passport showing my usual signature.[8]

   [7] sic

   [8] Affidavit of  Mr Goel 24.11.2015 at [5]-[6] and Annexures “A” and “B”; the annexed documents are not very clear but the signatures appear to be different

5. The Father went on to depose that once the divorce was finalised he moved back to India to live with his parents but would travel to Australia every three months to see the children. In 2014 the Mother moved to India with the children for three months. The Father persuaded the Mother to return to Australia with the children and he purchased a property at Property M, NSW, in May 2014. They all lived in that house for three months until the Mother purchased a property at Property F in about July 2014. She then moved there with the children.[9]

   [9] Ibid at [7]-[14]

6. The Father claimed that he would visit the children regularly until early 2015, when the Mother refused to allow him to attend her home. He obtained a grant of legal aid to attend a mediation.[10] He states that the last time he saw the children was on Father’s Day, 6^th September 2015.[11]  

   [10] Ibid at [19]

   [11] Ibid at [20]

7. The Father went on to depose that the Mother sent him a text message on 12^th September 2015 saying that she wanted to go overseas because she was applying for jobs overseas. He replied that the children would need to stay in Australia.  On 16^th September 2015 the Father states that he telephoned the Mother at her request and she told him that she wanted to go overseas but would be back within a week. He said that the children would need to stay in Australia because he did not want them to go to India. He claims that she threatened to complain that he raped her and he told her that he was going to go through legal channels to see the children.[12]

   [12] Ibid at [21]-[22]

8. The Father states in his affidavit that he was unable to contact the Mother on 18^th September 2015 and thereafter. He drove past her residence in Property F and saw a “For Sale” sign on it. He sent an email to the Mother asking where she was and received an email in reply. A printout of that email forms Annexure “C” to the Father’s affidavit. The Mother sent two separate messages saying:

   I am overseas I can’t ring don’t have roaming.

   Yes kids are well not a worry. I have only just come once my work is done will decide on my return.

9. The Father deposed that in late October 2015 he saw an online ad indicating that the Mother’s car was listed for sale by auction.[13]

   [13] Affidavit of Mr Goel 24.11.2015 at [32]

10. The Father claims in his affidavit that the Mother fraudulently renewed the children’s passports and changed the children’s surnames by forging his signature on the necessary forms. The Father deposed:

    33.X’s passport expired on 30 March 2015 and Y’s passport expired on 10 August 2015. At no time did Ms Mahla discuss renewing the children’s passports with me or provide me with new applications for my signature.

    34.On 23 September 2015 I contacted the Department of Foreign Affairs and Trade and the Attorney General’s Department for assistance regarding the children being removed from Australia. They have advised me that because India is not a signatory to the Hague Convention, I would need to seek assistance with the authorities in India.

    35.I have since spoken to a lawyer in India and they have advised me that if I obtain an Order from the Court in Australia, they may be able to assist me with the location and return of the children through their legal system.

    36.On 23 September 2015 I contacted the Australian Passport Office regarding the mother forging my signature to obtain passports for the children without my knowledge. This matter is currently under investigation and I had an appointment with the Passport Fraud Unit on 2 October 2015 to record my statement and verify the passport signature is not mine. I annex and mark with the letter “H” a true copy of my statement.

    37.Whilst attending at the Passport Office on 2 October 2015, I was shown a copy of birth certificates for my children which had been attached to the Passport Applications. These birth certificates indicated that the children’s surnames had been changed from “Mr Goel” to “Mr Goel”. This was apparently done in December 2013. I say that I have not signed any application to Births, Deaths and Marriages to change the children’s surnames. At no stage did I give the mother consent to change their surnames. The first I became aware that the children’s names had been formally changed was during this appointment.

    38.On 3 July 2013 I departed Australia and returned on 11 April 2014. I was not in Australia in December 2013. I annex hereto and mark with the letter “I” a true copy of my immigration movement record document showing my dates of departure and arrival into Australia.

    39.I have lodged a complaint with the Registry of Births, Deaths and Marriages in relation to my children’s names having been changed without my consent. I was informed by the Registry that my signature and identification was provided as part of the name change request. This is currently being investigated.

    40.On further perusal of the passport application my attention was drawn by the investigating officer to the declaration and consent part of the application. There is a signature that looks similar to mine however, the signature is not mine. I do not now recall the name of the witness on the application however I do recall that the person is not known to me. I do note that the phone number provided for the witness is my children’s primary school, (omitted) College in (omitted) (“the children’s school”). The mobile telephone number that was purportedly provided as my telephone number is not my telephone number. I don’t know who this number belongs to.

    41.On 11 September 2015 I was at work between 8:00 am to about 2:30 or 3:00 pm. I work in (omitted). It takes approximately 1 hour and 10 minutes to drive to the children’s school from my place of employment. I did not attend at the children’s school on 11 September 2015. I have only ever once attended the school which was in early 2015 for a school function.[14]

    [14] Affidavit of Mr Goel 24.11.2015 at [33]-[41]

1. The Father expressed concern that the Mother may have taken the children to her mother’s home in Mumbai. He claims that Mumbai is not a safe place for children due to the prevalence of kidnappings for ransom.[15]

   [15] Affidavit of Mr Goel 24.11.2015 at [45]

2. The Father also expressed concern about the standard of hygiene in Mumbai compared to Australia[16] and the inferior standard of the education system in India compared to that in Australia.[17]

   [16] Ibid at [47]

   [17] Ibid at [50]

3. The Father also deposed that when he inquired at the children’s school as to when the children were due to return he was told that the Mother had removed them from the school permanently as she said she was moving to (country omitted).[18]   

   [18] Ibid at [52]

4. The Father referred to the Mother’s affidavit of 31^st October 2015, the most recent affidavit filed by the Mother in these proceedings, and denied the vast bulk of the matters alleged.

5. In her affidavit, Ms J deposed that she worked at (omitted) College, the children’s former school. She stated that on or about 11^th September 2015 she signed the back of each photograph of the children and signed the relevant part of the application form for the children’s passports. She stated:

   At no time did I witness a man’s signature on the Passport Application form. Ms Mahla was not in attendance at the school with another person from my observations.[19]

   [19] Affidavit of Ms J 3.11.2015 at paragraph [6]

6. In his affidavit, Mr A, who is the Father’s employer, deposed that the Father was at work in his office in (omitted) from approximately 8:00 am until approximately 2:30 pm.

7. The Mother’s affidavit was sworn in India, at (omitted) on 31^st October 2015. In her affidavit the Mother deposed that:

   a)The Father was “extremely violent” to her in around 2010;[20]

   [20] Affidavit of Ms Mahla 31.10.2015 at [14]

   b)After the parties were divorced the Father sold the former matrimonial home and did not give her any of the money;[21]

   [21] Ibid at [18]

   c)The Father told her in July 2012 that he planned to leave Australia and live in (country omitted);[22]

   [22] Ibid at [24]

   d)The Father and the Mother agreed to enter into Consent Orders in respect of the children and they both signed the Minutes of Order, which were prepared by her solicitors, Pritchard Law Group;[23]

   [23] Ibid at [25]

   e)She applied to change the children’s surnames to “Goel-Mahla” and couriered the Application to the Father at an address in India; he signed the Application and returned it to her;[24]

   [24] Ibid at [26]

   f)In September 2013 she moved to India with the children at the request of the father, who promised to reconcile with her;[25]

   [25] Affidavit of Ms Mahla 31.10.2015 at [31]-[34]

   g)The Father did not reconcile with her but constantly asked her to transfer funds into his bank account;[26]

   [26] Ibid at [36]

   h)The Father sexually assaulted her on several occasions but she did not report the sexual assault to the police in Delhi;[27]

   [27] Ibid at [37]

   i)The Father would intimidate her and take all her money and she feared for her life and the lives of the children;[28]

   [28] Ibid at [38]

   j)The Mother returned to Australia on 6 June 2014;[29]

   [29] Ibid at [39]

   k)The Father constantly harassed her mother in India and as a result she fell ill;[30]

   [30] Ibid at [41]

   l)On 11^th September she gave the Father the children’s passport applications, which he took away to sign and returned them to her about 15 minutes later; she did not think to check the signatures;[31]

   m)On 16^th September 2015 she received advice from a Legal Aid solicitor in (omitted) and “was advised that I was able to travel with the children outside of Australia”;[32]

   n)She left Sydney for Mumbai on 18^th September 2015;

   o)When she arrived in India she was offered a job in (country omitted) so she registered the children at the Australian International School of (country omitted);[33]

   p)After the Mother told the Father in an email that she was overseas the Father contacted the Department of Foreign Affairs and Trade, telling them that he had no knowledge of the Mother’s whereabouts and that she had “kidnapped the children”;[34]

   q)She sent copies of the emails to the Australian High Commission “and then they realised Mr Goel wasn’t telling the truth”;[35]

   r)Her email to the Australian High Commission said “My ex husband has complete information about the same we have been in contact. I have emails as proof and phone record which I will forward it to you now;[36]

   s)Because the Mother feared that the Father was “planning something” against her, she decided not go to (country omitted) and stayed at her mother’s home in India;[37]

   t)The Mother fears for her life and her children’s safety; she has been harassed and exposed to domestic violence since she was married to the Father;[38] and

   u)She does not want to return to Australia “until all Court proceedings are finalised” as she fears what the Father will do.[39]

   [31] Ibid at [44]

   [32] Ibid at [47]

   [33] Ibid at [50]

   [34] Affidavit of Ms Mahla 31.10.2015 at [51]

   [35] Ibid at [52]

   [36] Annexure “K” to affidavit of Ms Mahla 31.10.2015

   [37] Affidavit of Ms Mahla 31.10.2015 at [53]

   [38] Ibid at [54]

   [39] Ibid at [56]

8. The Mother denied the matters in the Father’s earlier affidavit of 1^st October 2015, in particular his allegation that she forged his signature on the passport applications.[40]

   [40] Ibid at [64]

9. The Mother maintained her assertions that the Father sexually abused her both in India and Australia.[41]

   [41] Ibid at [58] and [62]

10. The Mother maintained her claim that she feared for her life in India.[42] She asserts that she fears for her safety and that of her family, including from the Father’s extended family in India.[43]

    [42] Ibid at [59]

    [43] Ibid at [68]-[69]

11. The Mother deposed that the children are attending “one of the most reputed International Schools in India” and their education is not suffering, as they both “speak, write and understand English and Hindi”.[44]

    [44] Ibid at [65]-[66]

12. The Mother asserts that the property at Property F was purchased in 2014 and, as the parties were divorced in 2012, she believes that the Father has no claim against the property.[45]

    [45] Ibid at [70]

13. Ms Haughton of Counsel, for the Father, submitted that it was clear that the Mother was going to leave the country, “no matter what”.

14. Ms El Ali, solicitor, who appeared for the Mother, told the Court that the Mother does not have a date set for her return to Australia, and her return date will depend on the health of her own mother. She reiterated that the Mother had always been the primary carer of the children.

15. It was also submitted that the Father was controlling of the Mother and had subjected her to violence and psychological harm.

The relevant law in regard to parenting applications

1. When the Court is considering making parenting orders, whether final orders or orders until further order (i.e. interim orders), it must have regard to various sections of the Family Law Act 1975 (Cth) that are to be found in Part VII of the Act. In particular, it should have regard to the provisions of:

   a)Section 60B, which contains the objects of Part VII and the principles underlying those objects;

   b)Section 60CA, which requires the Court to regard the best interests of the child (or children, in this case) as the paramount consideration;

   c)Section 60CC, which sets out the way that the Court determines what is in a child’s best interests;

   d)Section 61DA, which deals with the presumption that it is in children’s best interests for their parents to have equal shared parental responsibility for them; and

   e)Section 65DAA, which requires the Court to consider equal time or substantial and significant time with each parent where an order has been made that the parents should have equal shared parental responsibility for the children.

2. All of those matters have been considered, so far as they are relevant.

Injunctions under section 68B of the Family Law Act

1. Section 68B of the Family Law Act 1975 provides that:

   68B(1)  If proceedings are instituted in a court having jurisdiction under this Part for an injunction in relation to a child, the court may make such order or grant such injunction as it considers appropriate for the welfare of the child, including:

   (a)an injunction for the personal protection of the child; or

   (b)     an injunction for the personal protection of:

   (i)     a parent of the child; or

   (ii)     a person with whom the child is to live under a parenting order; or

   (iii)   a person with whom a child is to spend time under a parenting order; or

   (iv)    a person with whom the child is to communicate under a parenting order; or

   (v)     a person who has parental responsibility for the child; or

   (c)an injunction restraining a person from entering or remaining in:

   (i)          a place of residence, employment or education of the child; or

   (ii)     a specified area that remains a place of a kind referred to in subparagraph (i); or

   (d)an injunction restraining a person from entering or remaining in:

   (i)          a place of residence, employment or education of a person referred to in paragraph (b); or

   (ii)     a specified area that contains a place of a kind referred to in subparagraph (i).

   68B(2)  A court exercising jurisdiction under this Act (other than in proceedings to which subsection (1) applies) may grant an injunction in relation to a child, by interlocutory order or otherwise, in any case in which it appears to the court to be just or convenient to do so.

   68B(3)  An injunction under this section may be granted unconditionally or on such terms and conditions as the court considers appropriate.

2. The learned authors of Australian Family Law[46] summarise the principles relating to the exercise of the Court’s discretion to grant an injunction as:

   …under s. 68B(1) it is necessary that the order or injunction be appropriate for the welfare of the child. However the child’s interests need not be treated as the paramount consideration. While in many cases they might be of great, even overwhelming importance, it is open to the court to take into account other interests, against which the child’s interests may not necessarily prevail.[47]

   [46] Lexis Nexus Butterworths, Chisholm et al

   [47] Australian Family Law, Vol 1, page 1322.2

Conclusions

1. The Full Court of the Family Court held in Goode & Goode[48] that a Court at first instance in an interim hearing must consider the matters in s.60CC that are relevant and, if possible, make findings about them, noting that:

   (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place).[49]

   [48] [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286

   [49] (2006) 36 Fam LR 422 at 445 [82]

2. It is certainly the case that the parties’ affidavits give two completely different accounts of the issues.

3. It is the Father’s case that:

   a)He was unaware of the Consent Orders made in the Local Court on 1^st July 2013 until he came to Court on 12^th October 2015, the first return date of his Application;

   b)He did not sign any documents for the Registry of Births, Deaths and Marriages consenting to a change of the children’s surnames from “Goel” to Goel-Mahla”;

   c)He did not sign the application forms to renew the children’s passports; and

   d)He did not know about the Mother’s plans to leave Australia permanently.

4. It is the Mother’s case that:

   a)The Father signed the Minutes of Consent Order in 2013 prior to his leaving for India;

   b)The Father signed the necessary forms to change the children’s surnames, which she couriered to him at an address in India, and returned them to her;

   c)The Father signed the application forms to renew the children’s passports on 11^th September 2015; and

   d)She provided to the Father full details of her proposal to travel with the children out of Australia and her whereabouts when she had gone.

5. Neither party gave oral evidence, as is usually the case in an interim hearing. Indeed, the Mother was not even in Court, as she remained out of Australia. It was, therefore, not possible to test the Mother’s evidence by cross-examination. The Mother’s solicitor did not seek to cross-examine the Father.

6. What can be done is to compare the parties’ evidence in their affidavits. The Father’s account appears to be plausible. The Mother’s account, however, contains a number of improbabilities.

7. If it is the case that the Father consented to the parenting Orders made in the Local Court, the question arises why he did not seek to vary or discharge those Orders in his original Application, filed on 8^th October 2015. As he was at all times represented by a solicitor, it is a reasonable inference that the solicitor would have at least made reference to those Orders of 2013.

8. It is curious that, as the Mother deposes, an unnamed solicitor from Legal Aid at (omitted) told her on 16^th September 2015 that she was at liberty to take the children out of Australia without the consent of the Father if there were parenting Orders in force, unless she did not mention this fact to the solicitor.

9. If, as the Mother deposes, the Father was controlling and violent, it is surprising, to say the least, that he obligingly signed the forms that the mother couriered to him in India to change the children’s surnames to “Goel-Mahla” and sent them back to her in Australia.

10. If the Father did indeed consent to the children’s surnames being changed, it is surprising that he did not refer to them by the changed surnames in his Application filed on 8^th October 2015.

11. If the Father was such a controlling and violent person as the Mother deposes, it is surprising that he obligingly signed the passport application forms on 11^th September 2015. Why, too, did he need to do so if the Mother had sole parental responsibility for the children, as provided by the Consent Orders of 1^st July 2013? Section 11 of the Australian Passports Act 2005 (Cth) requires each person who has parental responsibility for the child to consent to the issue of a travel document for the child (s.11(1)(a)). The Mother had sole parental responsibility for the children.

12. If, as the Mother deposes, the Father was fully aware of her plans to travel out of Australia with the children, why did he need to send her an email on 21^st September 2015 saying:

    hello. where are you.

    can you please call me I need to speak to you.[50]

    [50] Annexure “C” to affidavit of Mr Goel 24.11.2015

13. Again, after he received the Mother’s reply, why did the Father need to send an email saying:

    how long have you gone for? Are kids ok and healthy?[51]

    [51] Ibid

14. The Mother told the Australian High Commission in her email, the Father had “complete information” about her whereabouts and those of the children, but her email to the Father said only:

    I am overseas I can’t ring don’t have roaming[52]

    [52] ibid

15. That statement can hardly be described as “complete information”. It does not even say what country she was in, only that she was “overseas”. If the Father knew of her plans beforehand, why did the Mother not refer to this fact in her email?

16. If the Mother feared that the Father was “planning something” against her, why did this cause her to cancel her plan to take up employment in (country omitted) and remain in India? The Mother deposed that she feared for her safety from the Father’s extended family in India, yet she chose to remain there rather than go to (country omitted).

17. If, as the Mother claims, the Father is a controlling and violent person who knew of her plans to leave Australia with the children, why did he wait until she had left before taking any action to stop her?

18. The Mother’s account in her affidavit is eminently implausible. I am satisfied that it is in the children’s best interests to make the parenting orders sought by the Father, including issuing a Recovery Order and placing the children’s names on the Family Law Watch List maintained by the Australian Federal Police. The term “Airport Watch List” is a misnomer, as the Family Law Watch List applies both to airports and seaports.

19. I am not satisfied that the Court should make the declarations sought by the father in the Amended Application that:

    …the mother forged the father’s signature on the Passport Applications for the children in September 2015

    …the mother forged his signature on a Court Order dated 3 September 2013…the mother is in breach of Section 65Y of the Family Law Act.

20. These are allegations that the Mother has committed criminal offences. The Federal Circuit Court does not have a criminal jurisdiction. A finding that a person has committed a criminal offence must be made by a court of competent jurisdiction beyond a reasonable doubt. This Court is dealing with an application for interim orders where the evidentiary standard is the balance of probabilities. It is not in my view competent for this court to make those declarations.

21. Similarly, I am not satisfied that the Court should exercise its discretion under s.68B of the Family Law Act to issue an injunction restraining the mother “from entering or remaining in any place of residence or education of the children, harassing, stalking, intimidating or otherwise approaching or contacting the father and the children”. Notwithstanding the Father’s evidence, I am not of the view that the evidence is sufficient to find that the welfare of the children requires such a draconian order or that there is any basis for a fear that the Mother will harass, stalk, intimidate or otherwise approach the Father.

22. For the same reasons, I am not satisfied that the Court should authorise a police officer to arrest the Mother without a warrant under the provisions of section 68C of the Act.

23. I am satisfied that the injunctive orders sought against property at Property F should be made. It is clear that the Father is not seeking property orders and, in any event, a property application would appear to be out of time under s.44(3) of the Family Law Act. The orders sought are by way of security for costs.

24. The allegations by the Father are of sufficient seriousness that I propose to request the Principal Registrar to forward a copy of these Reasons For Decision to the Commonwealth Director Public Prosecutions.

I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  13 January 2016