IRFAN & AMIN

[2021] FamCA 72

FAMILY COURT OF AUSTRALIA

IRFAN & AMIN [2021] FamCA 72

FAMILY LAW – CHILDREN – Interim orders – Where the mother and the children are currently residing in an overseas country and the father is residing in Australia – Where the husband has sought and obtained orders from a religious court which prevent the children from leaving the overseas country – Where the wife wishes to relocate back to Australia with the children and seeks orders compelling the father to take steps to remove the travel ban on the children – Where it is found on an interim basis that it is in the best interests of the children for the father to take steps to remove this ban – Where orders operate in personam on the father – Orders made requiring the father to do all acts and things to lift the travel ban – Orders made placing the father’s name on the Airport Watch List so to preserve the enforceability of this order.

Family Law Act 1975 (Cth), s 68B(1)(a)

Adanti & Coli (No.3) [2017] FamCA 1151
Babanaft International Co SA v Bassatne [1990] Ch 13
Credit Suisse Fides Trust SA v Cuoghi [1998] QB 818
CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345
Derby & Co Ltd v Weldon (No 6) [1990] 1 WLR 1139
In re Liddell’s Settlement Trusts [1936] 1 Ch 365
Lan v Hao (2017) 59 Fam LR 214

Dicey, Morris and Collins, Conflict of Laws, 15^th edition
Kerr, Injunctions (6^th ed. Paterson, 1927)

APPLICANT: Ms Irfan

RESPONDENT: Mr Amin

FILE NUMBER: MLC 900 of 2021

DATE DELIVERED: 26 February 2021

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: McEvoy J

HEARING DATE: 16 February 2021

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT: Mr Jones

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT: Self-represented

Orders

1. Until further order the father Mr Amin of C Street, Suburb D in the State of Victoria, born … 1966 be and is hereby restrained from leaving the Commonwealth of Australia AND IT IS FURTHER ORDERED that the Australian Federal Police place the name of the father Mr Amin born … 1966 on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the father’s name on the Watch List until further order of the Court.

2. Until further order the father forthwith do all things and sign all documents necessary to effect the immediate removal of the travel ban presently in place pursuant to the law of Country B which inhibits the international travel of the children W, X, Y and Z.

3. The mother’s application in a case filed 29 January 2021 be adjourned to 3.15 pm on 2 March 2021 or such other date as Chambers advises.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Irfan & Amin has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 900 of 2021

Ms Irfan

Applicant

And

Mr Amin

Respondent

REASONS FOR JUDGMENT

1. By an initiating application dated 29 January 2021 the applicant mother, Ms Irfan (“the mother”) seeks, amongst other things, urgent in personam orders requiring the respondent father, Mr Amin (“the father”) to take steps to remove a travel ban imposed on the four children of the marriage who reside with the mother in Country B. The mother’s application also seeks final parenting orders, a property settlement, spousal maintenance, including on an interim basis, partial property settlement, and litigation funding.

2. The mother’s application for interim orders was heard in the Judicial Duty List on 16 February 2021. The mother relied on her affidavit sworn and filed on 29 January 2021, an affidavit of a translator filed on 16 February 2021 providing a translation of the determination of County B Religious Court E City imposing the travel ban, an affidavit of her solicitor affirmed and filed on 16 February 2021 deposing to the attempted service of a pre-action procedure letter on the father, and, subsequently, the attempted service on the father of the mother’s initiating application, and other documents.

3. Although it was the evidence of the mother’s solicitor that personal service of the initiating application and other material on the father had not been successful, it would seem that service on the father has been effected by post because the father was present by telephone when the matter was called over on 16 February 2021. He was also present by telephone when the mother’s application was called on for hearing later that morning.

4. It should be recorded that the father professed to have limited facility in the English language, however he was assisted in his telephone appearance before the Court by a woman who claimed to be his niece and who was fluent in English. The father appeared to understand, in broad terms, the application that was being made, and he made an application to have the matter adjourned until he could obtain legal assistance. He said he had not been able to obtain legal advice in the short time since he had received the relevant documents by reason of the most recent imposition of Stage 4 restrictions in response to the COVID-19 pandemic by the Victorian Government.

5. Whilst the mother’s solicitor was content for the matter to be adjourned, he pressed the Court to make, on an interim basis, an order that the father forthwith do all things and sign all documents necessary to effect the immediate removal of the travel ban presently in place pursuant to the law of Country B which inhibits the international travel of the four children of the marriage. The mother’s solicitor contended that the making of an order in these terms could occasion no prejudice to the father, that the orders of the Country B Court were not family law orders, and that there were not proceedings parallel to the mother’s proceedings in this Court under the Religious law in Country B. The mother’s solicitor submitted that it was manifestly in the best interests of the children, who are Australian citizens, that they return to their country of citizenship for their safety and security, and so that the mother can effectively conduct her proceeding in this Court.

6. The circumstances in which the mother has commenced a proceeding in this Court are said to be as follows. Her affidavit recounts that she and the father were married in Country B in 2003 and that they relocated to Australia in 2004. The children of the marriage were born in 2005, 2007, 2009 and 2011. Final separation is said to have occurred on 27 June 2017, and a divorce order made by the Federal Circuit Court of Australia on 26 October 2020.

7. As well as deposing that she is an Australian citizen, it is the mother’s evidence that she travelled to Country B with the four children at about the end of 2016 on the instructions of the father who convinced her that it would be best for the family, economically, if she and the children resided in Country B for a while. She says that the father remained in Australia while she and the children relocated to E City, a city in Country B.

8. The mother contends that in mid-2017 the father travelled to Country B and advised her that their marriage was over and that he would not be moving to Country B from Australia. It is said that the father also advised that he had issued travel bans on the mother and the children which would prevent any of them leaving Country B without his consent. The mother contends that the father has not provided adequately for the family and that he has abandoned his responsibilities to her and to the children. She also recounts instances of family violence perpetrated on her in Australia, and acts of intimidation carried out by the father and members of his family in Country B in June 2017, which included a threat to harm her if she attempted to return to Australia without his permission.

9. Although he had not filed any responding affidavit material, and sought time to do so, the father appeared to accept that the travel ban was in place, and he informed the Court, through his niece, that he was prepared to remove the travel ban but not at this point in time because the parties still need to negotiate what arrangements will be put in place if this occurs. According to the mother, the travel bans no longer prevent her leaving Country B by reason of the Australian divorce which she obtained in 2020. Unsurprisingly however she says that she will not leave Country B without the children, who are still prevented from leaving by force of the order of the Country B Court.

10. The Court has before it a certified translation of the document which has issued from the Country B Court. It is as follows –

    …

    Republic of Country B

    Office of the Prime Minister

    Religious Court

    Travel Ban
    Legal document number … of the registry number …/ year 2020

    At the hearing session of [E City Religious Court], chaired by judge … and

    attended by the judicial assistant, [Mr N],

    The following determination has been issued:

    [Mr. H], in his capacity as the attorney for [Mr. Amin] according to legal power of attorney, has attended this court and declared that his agent has four children with

    his wife, [Ms Irfan], namely ([W], born in 2005, [Y], DoB: ... 2009, [Z], DoB: … 2011 and [X], DoB: … 2007). It came to the knowledge of his agent that his aforesaid wife intends to travel accompanied by the aforesaid children outside of Country B territories, which will inflict severe harm on his agent.

    Therefore, I request your court to issue an urgent determination granting my agent enforceable custody over his children.

    Thereupon, in accordance with Articles 20 and 21 of the Judicial [Religious] Law, the court has decided: Firstly, that this matter is an urgent one, Secondly, to ban the travel of the aforesaid four children outside Country B territory until further notice, namely ([W], born in 2005 in Melbourne Australia, [Y], DoB: … 2009, PoB: Melbourne- Australia, [Z], DoB: … 2011, PoB: Melbourne- Australia and [X], DoB: … 2007, PoB: Melbourne Australia), their registration record is: …/…, their mother's name is: [Ms Irfan], they all bear Australian citizenship, in addition to Country B citizenship.

    Relevant authorities must implement and action this urgent determination as is, issued on 12/6/… corresponding to 6th February 2020.

    Court Clerk [signed]

    Judge

11. Also before the Court is a certified translation of a document provided by the mother’s Country B attorney confirming the existence of the orders of the Country B Court, and his unsuccessful attempt to have the orders set aside. It is as follows –

    Mr F  Ms G
    Appeals  Appeals Counsel

    To Whom It May Concern

    Attorney/ Mr F, in his capacity as the attorney for Ms Irfan declares that Mr Amin has acquired through his attorney/ Mr H a determination from the [Country B Religious Court], numbered ..., filed under record .../2020, dated 6th February 2020, which bans travel of his children (W, Y, Z, and X) outside of Country B territories.

    Ms Irfan has appointed me as her attorney to revoke the travel ban of her abovenamed children. Thereupon, I filed a lawsuit with the Country B Religious Court seeking the revocation of the travel ban of the children. However, Mr Amin, represented by his attorney Mr H, has absolutely refused to permit travel of his children outside Country B territories, noting that Mr Amin has discontinued payment of his obligatory children maintenance for the months of January and February 2021, amounting to 900 000 Country B currency, equivalent to US$ 50 per month. I made several attempts to contact Mr K, the brother of Mr Amin, to try to persuade him to allow his children to travel outside Country B territories, specifically to Australia, given the deteriorating security conditions in Country B which became extremely unsafe (murder, kidnaping, theft and rape), in addition to the fact that the children do not attend school in Country B due to the refusal of their father to enrol them in private schools, in addition to the fact that their maintenance money does not meet their daily needs. Despite all of that, Mr Amin has refused to allow his children to travel to Australia.

    Hence, I have to describe to you the suffering of the children of my agent, Ms Irfan, where they are being totally neglected by their father Mr Amin, who continues to prevent them from travelling to Australia where they will find safety, security, reassurance and education.

    E City on 9th February 2021

    Best regards
    [Signed and stamped]
    Attorney/ Mr F, Appeals Counsel

    E City, Country B, L Building, Ph: ..., Mobile: ...

12. Whilst much of the mother’s evidence has not been tested, it is apparently not disputed that the children remain in Country B and by force of the orders of the Country B Court are prevented from leaving that country. In these circumstances I accept, for present purposes, the submission made on behalf of the mother that it would be in the best interests of these children that the father be required to commence to take steps to remove the travel ban which he has caused to have imposed on the children in Country B. An order can be made requiring the father to take these steps, until further order, in the knowledge that it will inevitably take some time to arrange for the lifting of the travel ban. Whether or not there are to be orders requiring the children to be brought from Country B to Australia can await the further hearing of the matter on a subsequent date. The mother’s application will be adjourned for this purpose and so that the father may have an opportunity to obtain legal advice and, if appropriate, file material in response to the mother’s application.

13. Accordingly, pursuant to s 68B(1)(a) of the Family Law Act 1975 (Cth) (“the Act”), there will be an order that until further order, the father forthwith do all things and sign all documents necessary to effect the immediate removal of the travel ban presently in place pursuant to the law of Country B which inhibits the international travel of the children W, X, Y and Z.

14. Insofar as the Court’s inherent power to protect the integrity of its processes once set in motion and the equitable jurisdiction to make in personam orders requiring a person subject to the jurisdiction of an Australian court to engage in activity outside the jurisdiction are concerned, see CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345, 391-394 (Dawson, Toohey, Gaudron, McHugh, Gummow, Kirby JJ); Lan v Hao (2017) 59 Fam LR 214, 229-230 (Ainslie-Wallace, Aldridge and Watts JJ) (“Lan”); Adanti & Coli (No.3) [2017] FamCA 1151 (Macmillan J) (“Adanti”); Babanaft International Co SA v Bassatne [1990] Ch 13, at 38, 41-42 (CA); Derby & Co Ltd v Weldon (No 6) [1990] 1 WLR 1139, 1149 (CA); Credit Suisse Fides Trust SA v Cuoghi [1998] QB 818, 826-827 (CA); and In re Liddell’s Settlement Trusts [1936] 1 Ch 365, at 371-374 (CA). See also Kerr, Injunctions (6^th ed. Paterson, 1927), p.11; Dicey, Morris and Collins, The Conflict of Laws, 15^th edition, 264; 434-435.

15. As the learned authors of Kerr on Injunctions, observed:

    As a consequence of the rule, that in granting an injunction the Court operates in personam, the Court may exercise jurisdiction independently of the locality of the act to be done, provided the person against whom relief is sought is within the reach and amenable to the process of the Court. This jurisdiction is not grounded upon any pretension to the exercise of judicial or administrative rights abroad, but on the circumstance of the person to whom the order is addressed being within the reach of the Court.

16. During the course of argument the Court enquired of the solicitor for the mother whether, in all the circumstances, it would be desirable for an order to be made, until further order, restraining the father from leaving the Commonwealth in order to preserve the father’s amenability to the process of the Court. The mother’s solicitor agreed that such an order would be appropriate on an interim basis, and made an oral application for an order in these terms.

17. Although it was not apparent that the father opposed the making of such an order on an interim basis it is, regardless, appropriate that such an order be made for provisional and protective purposes. It will readily be apparent that the mother will lose the ability to enforce any order requiring the father to remove the travel ban imposed by the Country B Court and repatriate the children to Australia if the father does not remain in Australia subject to the jurisdiction of this Court: see, in this respect, Lan; Adanti.

18. Accordingly there will also be an order that until further order the father be restrained from leaving the Commonwealth and that the Australian Federal Police place his name on the Airport Watch List in force at all points of arrival and departure in the Commonwealth and maintain his name on the Watch List until further order of the Court.

19. The further hearing of the mother’s application will be adjourned until a date to be fixed. It is the Court’s expectation that the father will, as he has indicated he seeks to do, avail himself of the opportunity to seek legal advice and that any responsive material will be filed as soon as is practicable.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McEvoy delivered on 26 February 2021.

Associate: 

Date:              26 February 2021