Goh and Trinh

[2009] FamCA 306

FAMILY COURT OF AUSTRALIA

GOH & TRINH [2009] FamCA 306

FAMILY LAW – CHILDREN – Child’s mother took child to non-Hague convention country – Declarations that the parents have equal parental responsibility

APPLICANT: Mr Goh

RESPONDENT: Ms Trinh

FILE NUMBER: SYC 5992 of 2008

DATE DELIVERED: 25 March 2009

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Johnston JR

HEARING DATE: 25 March 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Kirkman

FOR THE RESPONDENT: No appearance

Orders

1. That orders are made in accordance with paragraphs 1, 3 and 4 of the Minute of Orders filed in Court today and signed by Judicial Registrar Johnston and placed with the Court papers as set out hereunder:-

That pending further order of the Court:-

1.That the Applicant Husband, [Mr Goh] and the Respondent Wife, [Ms Trinh] and their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the child, […] (born […] October 2006) (“[the child]”) 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 child] on the Airport Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain [the child’s] name on the Watchlist until the Court orders its removal.

…

3.That it is declared that:

a)That pursuant to Section 61C(1) of the Family Law Act 1975, in the absence of any order to the contrary, the parties have shared parental responsibility for [the child];

b)That no order has been made by an Australian Court exercising jurisdiction under the Family Law Act 1975 so as to confer sole parental responsibility for [the child] upon the mother;

c)That no order has been made by an Australian Court exercising jurisdiction which would allow the mother to remove the child from the Commonwealth of Australia without the consent of the father;

d)That the child was taken by the mother from the Commonwealth of Australia on 17 March 2008, without the consent of the husband or an order of a Court.

4.That it is requested that:

a)The Department of Foreign Affairs and Trade or such other department as is responsible for border control provide to the father, at his expense and as soon as is practicable, the following:

i)Details of the passport of the child, […] (born […] October 2006) (“[the child]”), including the passport number, place of issue, date of issue and date of expiry; and

ii)A copy of the departure card signed by the mother on her departure with [the child] in March 2008.

1. That these proceedings are otherwise adjourned to the Judicial Registrar's Duty List call-over at 9:30 am on 22 April 2009 as a “NOT REACHED” matter.

2. That a sealed copy of these orders be served on the respondent mother as soon as possible.

3. That the Court notes that in the event that there is no appearance at Court at 9:30 am on 22 April 2009 the father proposes to ask the Court to hear his application as an undefended proceedings.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5992 of 2008

MR GOH

Applicant

And

MS TRINH

Respondent

REASONS FOR JUDGMENT

1. Before the Court are various applications.  These include parenting applications by Mr Goh to whom for convenience I shall refer as the husband, in relation to child of the marriage, a daughter who was born in October 2006. 

2. The child's mother is Ms Trinh and Ms Trinh is currently in Vietnam.

3. The background matters are that the father was born in November 1972 and is an Australian citizen.  The child's mother was born in March 1978.  She has a permanent residence visa in Australia.  The parties married in November 2003. 

4. Regrettably, and this is a matter of enormous concern to the child's father, on 17 March 2008 the mother removed the child from Australia without the father's knowledge or consent.  It seems fairly clear on the material that is before the Court at this stage that the child was habitually resident in Australia at the time of her removal.  But unfortunately Vietnam is not a party to the Hague Child Abduction Convention so that Australia does not have arrangements with Vietnam, which are similar to arrangements which we have with many other countries now, under the auspices of the Hague Convention On The Prevention of Child Abduction.  These enable the central authorities in the reciprocating country to be able to take action in Courts in that country to bring about the repatriation of the child to the country of the child's habitual residence.  And the absence of such arrangements is most unfortunate.

5. The father has approached the Court for assistance, notwithstanding that Vietnam is not a party to the Hague Convention.  He seeks a number of orders on an urgent basis and in my view it is appropriate for this Court at this point to make most of the orders that the child's father is seeking.

6. It is said on his behalf that this might facilitate action which he is bringing in the relevant Courts in Vietnam with a view to seeking that the child be restored to Australia. 

7. The orders I propose to make are only part of a package of orders that the father is seeking.  Unfortunately in relation to the general parenting orders and in relation to the property orders which the father is asking the Court to make on an undefended basis, I do not have time to apply my mind to all of those matters today.  But I do regard there to be an urgent aspect.  That is that firstly the Court should ensure that orders are put in place which would prevent the child from being removed from Australia in the event that the child's mother was to return with the child to Australia.  Secondly, I am prepared to make some declarations in relation to the responsibility which the parents have for the child which I understand might assist the father in the proceedings which he is undertaking in Vietnam.  Pursuant to Australian law both parents have parental responsibility for a child unless and until the Court makes an order to the contrary.  Sub-s.61C(1) of the Family Law Act 1975 to the effect that each of the parents of a child who is not 18 has parental responsibility for the child.

8. No order to the contrary has been made.  Under Australian law once a parenting order has been made a parent cannot remove a child from Australia without consent of the other parent or an order of the Court.

9. I shall make the orders set out in these Reasons for Judgment.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Johnston JR

Associate:     

Date:              27 April 2009