GROOM & TOPPING

[2015] FCCA 940

FEDERAL CIRCUIT COURT OF AUSTRALIA

GROOM & TOPPING [2015] FCCA 940

Catchwords:
FAMILY LAW – Children – parenting orders – recovery order – warrant for the arrest of the mother – injunction concerning passport and visa – injunction restraining mother from removing child from Australia – father may obtain Australian passport for the child – child to live with father until mother returns to Australia – where mother failed to return to Australia after a holiday in (country omitted).

Legislation:
Australian Passports Act 2005 (Cth), s.11
Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 62B, 65DA, 65DAA, 65Q, 67Q

Applicant: MR GROOM

Respondent: MS TOPPING

File Number: SYC 1057 of 2014

Judgment of: Judge Scarlett

Hearing date: 1 April 2015

Date of Last Submission: 1 April 2015

Delivered at: Wollongong

Delivered on: 1 April 2015

REPRESENTATION

Solicitor for the Applicant: Ms Buttriss

Solicitors for the Applicant: Marsdens Law Group

Solicitor for the Respondent: Mr McDonald (given leave to withdraw)

Solicitors for the Respondent: G & D Lawyers

ORDERS

1. That:

   1.1Any person from time to time holding or acting in the capacity of a Police Officer of the Commonwealth or of a State or Territory;

   1.2Any person holding or acting in the office of a Child Recovery Officer; or

   1.3Mr Groom (the Father).

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

1.41.4 To stop and search for any vehicle, vessel, or aircraft, and search any premises or place for the purposes of finding the child.

1.5To enter and search the premises or place situate at see annexure “A”.

1.6To recover the child, X born (omitted) 2013, (male).

1.7To deliver the child to Mr Groom.

1.8To arrest, without warrant, the Mother, Ms Topping in the event that the Mother again removes, or takes possession of the child.

1. That the Mother, Ms Topping, forthwith return the child to the Father, Mr Groom.

2. That Ms Topping be restrained by injunction from again removing or taking possession of the child.

3. That pursuant to Section 65Q of the Family Law Act, the Court issue a warrant authorising any member of the Commonwealth, or State Police Force to arrest the Respondent Mother.

4. That the Mother be restrained by injunction from commencing or proceeding with any application for a passport for the child from the Department of Foreign Affairs and Trade of the Commonwealth of Australia, or the Consulate, or any other appropriate consent of any other country.

5. That Mother be restrained by injunction from commencing or proceeding with any application for:

   1.9A visa to allow the child to remain outside of the Commonwealth of Australia.

   1.10A (country omitted) passport for the child X born (omitted) 2013, (male).

6. That until further order, or else subject to the authenticated consent of all parties required to provide consent by Part VII of the Family Law Act 1975, each party, Ms Topping and Mr Groom, their servants and/or agents be and are hereby restrained from removing or attempting to remove, or causing, or permitting the removal of the said child X born (omitted) 2013, (male) from the Commonwealth of Australia for a period of 13 years;

7. AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of the said child on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia, and maintain the child's name on the Watchlist for the said period, until the Court orders its removal, or with consent of all parties.

8. That pursuant to section 11 (1)(b) of the Australian Passports Act2005 these Orders provide authority to the Minister for Foreign Affairs or a delegate of the Minister to issue an Australian Passport to the child:

   1.11X born (omitted) 2013, (male).

9. That the Australian passport issued to the child shall be provided to Mr Groom to hold on behalf of the child.

10. That the child shall live with the Father in Australia until such time as the Mother returns to the Sydney Metropolitan area of Sydney in the Commonwealth of  Australia, whereby the Mother is at liberty to re-apply to seek the child live with the Mother.

11. That pursuant to s.62B of the Family Law Act, information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.

12. That pursuant to s.65DA(2) of the Family Law Act, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet, attached hereto and these particulars are included in these orders.

    Annexure “A”

(language omitted)

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT WOLLONGONG

SYC 1057 of 2014

MR GROOM

Applicant

And

MS TOPPING

Respondent

REASONS FOR JUDGMENT

1. This is an Application by the father of a little boy called X who was born on (omitted) 2013.  The father commenced proceedings on 25 February last year seeking various parenting orders.  The mother has filed a Notice of Address for Service but has not filed a Response or an affidavit.

Background 

1. On 13 August 2014 the parties entered into consent orders which permitted the mother to leave Australia and take the child with her for a holiday in her native (country omitted) for approximately three months.  The father consented to that, and orders were made by consent on 13 August. 

2. The father deposed in his affidavit that the mother was desperate to return for a short holiday to see her parents and would say to him words to the effect of, “My mum is sick.  I need to see her.  I’m depressed here.  I want to go and spend some time with my parents.”  The father deposed that the mother had previously spent three months with her parents when X was four months old, and she had returned.  Whilst the father had concerns that the mother would not return, he said that they had many private discussions whereby she would say to him words to this effect, “I give you my word I will return to Australia.” 

3. The father felt it was not morally right to withhold X from seeing his grandparents, and he trusted that the mother would return.  After the orders were made by consent on 13 August 2014, the mother provided the father with details of travel early in December, including a flight itinerary, a copy of X's (country omitted) visa, a copy of the maternal grandmother and grandfather’s (country omitted) passport, details of the maternal grandmother’s address in (country omitted), and the mother’s Skype name. 

4. The mother indeed left Australia with the child on 28 December, and the father would Skype the mother to talk with X at least once a week, sometimes up to three times a week.  They would message each other over Skype to organise the time, and the mother would respond to his questions about how X was.  There was no indication given by the mother that she was not intending to return to Australia.  The father deposed that on 22 March 2015 at 10.50 pm the mother tried to Skype him.  He was not given notice that she would Skype him and he was asleep, because he had a 4 am start for work the next day.  Accordingly, and not surprisingly, he missed the Skype call. 

5. The next day, Monday, 23 March, the father noticed there was a status change in the Skype contacts list, and the mother had blocked him from her Skype.  He sent emails to the mother seeking information about X and about her return without a response.  It was the father’s evidence that the mother was due to return on 25 March this year, and he went to the airport to satisfy himself that they had actually arrived.  The mother had been booked to arrive on Qantas flight (omitted), which flew in from (omitted), and that was due to arrive at 8 am.  He waited at the area where passengers disembark.  The mother and X did not arrive. 

6. The father deposed that he went to the mother’s residence, where her estranged husband, a Mr T, was living.  He spoke to this gentleman, who said that the mother had told him a couple of months previously that she was not returning.  The father asked, not surprisingly, “Why didn’t you tell me?”  And the man said, “I did not want to get involved any further, but I’ve been trying to convince her to come back.  She is my wife and I wanted her to return.”  He told the father he had not spoken to the mother recently. 

7. The father has given updating evidence that he has made enquiries, various attempts to contact the mother by email, Facebook, and a phone call to her mother’s address in (omitted).  He sent a text message to the mother’s estranged husband in (omitted), but has received no response to any of those attempts to contact her. 

8. The father now seeks a recovery order, an order that the mother return the child to the father forthwith, an injunction that the mother should be restrained from again removing or taking possession of the child, a warrant under the provisions of section 65Q of the Family Law Act 1975 (Cth) authorising any member of the Federal or State police forces to arrest the mother, an injunction restraining the mother from commencing or proceeding with any application for a passport for the child, an injunction restraining the mother from commencing or proceeding with any application for a visa to allow the child to remain outside of the Commonwealth or a (country omitted) passport, an injunction restraining either party from causing or permitting the removal of the child X, born (omitted) 2013, from the Commonwealth of Australia for a period of 13 years, and a request to the Australian Federal Police to give effect to the order by placing the name of the child on the family law watch list that is operated by the Australian Federal Police.

9. The father also seeks an order under subsection 11(1) paragraph (b) of the Australian Passports Act 2005 (Cth) to provide authority to the Minister for Foreign Affairs or the Minister’s delegate to issue an Australian passport for the child X. He also seeks an order that the passport shall be provided to him to hold on behalf of the child, and he seeks a residence order that the child should live with him in Australia until such time as the mother returns to the Sydney metropolitan area, at which stage the mother would be at liberty to reapply to seek that the child live with her.

Applications for Parenting Orders

1. This is a parenting matter brought about in some circumstances of urgency.  Nevertheless, the same law applies as it does in any parenting order, that the Court must consider the principles and the objects of Part VII of the Family Law Act 1975 set out in section 60B of the Act and the principle in section 60CA that the best interests of the child must be the paramount consideration. The Court must look at relevant matters in section 60CC, which tells the Court how to determine what matters are in the child’s best interests. The Court should also consider the requirements of section 61DA and section 65DAA.

Conclusions 

1. This is an exceptional case brought in circumstances of urgency.  I am satisfied that the orders sought by the father are indeed in the best interests of the child X.  I note in particular that the father deposed in his affidavit that when the mother arrived in (country omitted), they spoke soon afterwards, and the mother said to him:

   The country has changed.  It’s not good over here.  There is a lot of political unrest.

2. That would seem to me to be cogent evidence of the fact that a little boy, not yet two years of age, would be better off living in a safe and loving arrangement in Australia where there is no political unrest.  In all the circumstances, I am satisfied that the orders sought by the father in a detailed and well-prepared application should be made, and I propose to issue those orders. 

3. I note that it is sought and I propose to make an order that the mother should be at liberty to reapply to seek that the child X should live with her upon her return to the Sydney metropolitan area here in Australia. That will be up to her.  In the meantime, the orders will issue. I remove the application from the list of cases awaiting finalisation.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  16 April 2014