GREEN & GREEN

[2015] FCCA 1688

FEDERAL CIRCUIT COURT OF AUSTRALIA

GREEN & GREEN [2015] FCCA 1688

Catchwords:
FAMILY LAW – Parenting orders – ex tempore reasons – Airport Watch List Orders made upon the motion of the Court.

Legislation:

Family Law Act 1975 (Cth), s.67Z

Applicant: MS GREEN

Respondent: MR GREEN

File Number: MLC 6465 of 2010

Judgment of: Judge Hartnett

Hearing date: 27 May 2015

Delivered at: Melbourne

Delivered on: 27 May 2015

REPRESENTATION

The Applicant: No appearance

The Respondent: No appearance

ORDERS

1. All extant applications are dismissed for want of prosecution.

2. UNTIL FURTHER ORDER, the children, subject to the Order, are restrained from leaving the Commonwealth of Australia.

3. Each party (MS GREEN born (omitted) 1973 and MR GREEN born (omitted) 1976) their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the taking or sending of the said children (X born (omitted) 2005 and Y born (omitted) 2007) from the Commonwealth of Australia.

4. IT IS REQUESTED that the Australian Federal Police give effect to this Order by placing the names of the said children on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Airport Watch List until the Court orders its removal.

5. There is liberty to the parties to seek, by application, to set aside orders 2 to 4 herein.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 6465 of 2010

MS GREEN

Applicant

And

MR GREEN

Respondent

REASONS FOR JUDGMENT

(Edited ex tempore reasons)

1. Neither party appeared in these proceedings this day. The parties were subsequently called outside the courtroom at approximately 10am this day and again at a later time in the day. There is no response to the call.  In these circumstances, and given that the parties were ordered on 16 December 2014 to file and serve affidavit evidence at least 21 days prior to this date, and both having failed to comply with that order, the Court will dismiss the extant applications.

2. The proceedings commenced on an Initiating Application, filed by the mother on 10 October 2014. An Affidavit in support of that Application together with a Notice of Child Abuse, Family Violence or Risk of Family Violence were also filed by the mother on the same date. No response is filed by the father, but an Affidavit, sworn by him on 2 December 2014, has been filed. 

3. The matter first came before Judge McGuire on 14 October 2014, when the mother appeared in person and the father in person via telephone link.  The Court ordered on that day the return of the parties’ children, X born (omitted) 2005 and Y born (omitted) 2007, who had been over-held by their father, to the mother’s care.  The execution of the recovery order made was stayed until 16 October 2014.  The father was to file and serve a response and affidavit not later than 14 days prior to the hearing on 16 December 2014.  The matter was also listed for hearing on 16 October 2014 to ensure the children had been returned to Melbourne. 

4. On 17 October 2014, when the matter in fact next came before the Court, the mother appeared in person by way of telephone link and there was no appearance by or on behalf of the father. The father was again ordered to make, file and serve a response and any affidavit material on which he sought to rely within 21 days. 

5. On 16 December 2014, Judge McGuire adjourned the proceedings for final hearing to this date.  Each party were to file their affidavits of evidence-in-chief; both have failed to do so.  The father continues to fail to file a response.  Both parties were to file and serve a case summary document; both have failed to do so.  A setting down fee was to be paid by the Applicant; I am uncertain whether that has, in fact, been paid. On the Court file at that time was a s.67Z of the Family Law Act 1975 (Cth) response from Ms M of the Department of Human Services in response to the Notice of Child Abuse, Family Violence or Risk of Family Violence filed by the mother. The following was relevantly contained therein:-

   “Summary of Current Protective Concerns and Outcome

   The current report is in response to a Form 4 notice provided by the Family Law Court,

   The Information in this notice alleges concerns surrounding the care and safety of the children in the care of the Father. The Father is noted to reside in Queensland, with the children spending holidays in his care. It was alleged that the children were witness to verbal and physical violence between the Father and Stepmother whilst in his care. Child Protection have previous reports of which also raise concerns surrounding the Father’s violence, both in the past towards the Mother and more recently towards the Stepmother.

   An intake report was open at the time of the 67Z report being received, with this report having pertained to concerns surrounding the Mother’s care and raised concerns surrounding Y’s sexualised behaviours. Throughout follow up and at Intake there has been no evidence of which to support these allegations. At this time, the Mother is to be engaged with family services for support, with Family services mandated to consult with Community Based Child Protection workers should any concerns arise regarding the Mother’s care or any concerns surrounding the children’s presentation.

   The concerns raised by the Mother have the capacity to be addressed through the Family Law Court arena, with no further role identified for Child Protection at this time. DHS have indicated that there may be information of which the Court may be interested in. At this time however, Child Protection intended to cease involvement with this family.” 

6. The Court notes that final parenting Orders were earlier made by Judge Riley on 14 June 2013.  Those Orders were made by consent.  The mother’s Initiating Application filed in October 2014 was to vary those Orders in part. There has been a failure to proceed with that Application. Ordinarily that would result in no orders other than a dismissal. But there are other matters of concern that have recently occurred and in relation to which some history is needed.   

7. Orders numbered 9 to 12 of the final Orders made by Judge Riley on 14 June 2013 were as follows:-

   “9. That the parties do all such acts and things and sign all necessary documents to renew the children's passports prior to, or upon their expiration, and the Father pay all costs associated with the application and renewal of the children's passports.

   10. That the children's passports be held at the Melbourne Registry of the Federal Circuit Court.

   11. The passports be released to the travelling parent upon both parties providing their written consent to the Melbourne Registry of the Federal Circuit Court and be returned by the travelling parent no later than 7 days upon their return to the Commonwealth of Australia.

   12. That the children be permitted to travel overseas with each parent during the children's time with them.”

8. Following the filing of the mother’s Initiating Application in October 2014, and prior to this date, the father sent an email to the Melbourne Registry of the Federal Circuit Court.  That email was dated 10 March 2015.  It was sent at 9.42 pm.  It said:-

   “I require my daughters passports for travel overseas.  Their mother has approved me to collect their passports for this purpose.  Please ensure both Australian and (country omitted) Passports are included in the registered post package. ie 4 passports in total.

   Their mother Ms Green is available on (omitted)@yahoo.com and (omitted) for confirmation. 

   If possible I would like to pay for express post delivery to the address:

   (omitted) NSW  

   Please advise as soon as possible when this will be processed as the Australian passports need to be renewed for travel in April. 

   Yours sincerely,

   Mr Green

   (omitted)”

9. Subsequent to forwarding that email to the Court, Mr Green telephoned the Court following up on his email for urgent release of the children’s passports to him.  The client service officer at the National Inquiry Centre of the Family Court and Federal Circuit Court note of 13 March 2015 is in part:-

   “… I am advised that the request was by consent of the parties.  Mr Green was anxious to chase up his request as he is due to travel with his children early next month, and needs to renew sets of passports (both (country omitted) and Australian).”

10. On 17 March 2015, client services at the Melbourne Registry of the Federal Circuit Court advised Mr Green by email as follows:-

    “Dear Mr Green

    Thank you for your email of 10 March 2015 (received 9.42 pm) and subsequent follow-up telephone call.

    A review of the orders made in relation to passport release reveals that the passports may be released to the travelling parent upon both parties providing their written consent to the Melbourne Registry of the Federal Circuit Court.  I note your email provides the email address for the mother who can be contacted for confirmation of her approval.  The passports cannot be released until there is strict compliance with the orders of Judge Riley made 14 June 2013 namely, that both parties provide their written consent (refer to order 11 for detail).

    Upon receipt of this information, your request will be expedited.”

11. To that point in time, none of the correspondence emanating from Mr Green nor the reply from the Registry, had been copied in to the mother.  By correspondence of 16 April 2015, the father emailed the Court, allegedly copying in the mother, to advise that the Australian passports should be sent to the mother at Property J, Victoria.  I note that address appeared to be the mother’s address at the time of the filing of her Initiating Application in October 2014. 

12. On 17 April 2015, Mr Green was advised by the Melbourne Registry of the Federal Circuit Court that the mother must provide her written consent to the release of the passports to him, and such a consent letter must be able to identify the other parent.  That correspondence said in part:-

    “It is not for the Court to seek consent from the mother.

    Final approval to the release of the passports must be given by a Registrar of the Court.

    You may wish to attend personally at Registry with this information, and your query will be dealt with at that time by counter staff.”

13. No further correspondence followed. 

14. Had the mother consented to the release of the passports to the father, it would have been an easy matter for her to provide her written consent and for the parties to attend at Court if necessary.  That was not done.  The time at which the father made the request was a time when the parties, on their affidavit evidence, were in conflict, and the mother was seeking some form of supervision of the father’s time spent with the children. The mother also was required to seek, and did obtain, a recovery order in respect of the return of the children to her care. 

15. In these circumstances, the correspondence of the father is concerning, and the Court considers it in the children’s best interests that an order placing their names on the Airport Watch List be made immediately. The parties jointly can seek to discharge such order if that is their desire.

16. By way of postscript the Court notes that a Response, Notice of Risk and Affidavit was filed by the father on 26 May 2015 at 6:25pm. This material was not on the Court file at the time of the making of the Orders. The father did not appear. It accordingly was also dismissed for want of prosecution. On a reading of his Affidavit, there is nothing the father puts before the Court to alleviate its concerns as to the behaviour of the father in his seeking the release of the children’s passports.  

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date:  22 June 2015