Irfan & Amin
[2022] FedCFamC1F 300
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Irfan & Amin [2022] FedCFamC1F 300
File number(s): MLC 900 of 2021 Judgment of: WILSON J Date of judgment: 28 April 2022 Catchwords: FAMILY LAW – CHILDREN – travel bans – orders made to remove travel ban Cases cited: AH & SS [2010] FamCAFC 13
Marvel & Marvel (2010) 43 Fam LR 348
Eaby v Speelman [2015] FamCAFC 104
Deiter & Deiter [2011] FamCAFC 82
Pollard and Nordberg [2019] FamCA 365
Division: Division 1 First Instance Number of paragraphs: 22 Date of hearing: 28 April 2022 Place: Melbourne Solicitor for the Applicant: Mr A. Jones Solicitor for the Respondent: Mr G. Hanafin ORDERS
MLC 900 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS IRFAN
Applicant
AND: MR AMIN
Respondent
ORDER MADE BY:
WILSON J
DATE OF ORDER:
28 APRIL 2022
THE COURT ORDERS that:
1.The respondent father must forthwith take all steps and do all things necessary to ensure that the current travel ban which inhibits the children’s return from Country B is lifted.
2.The respondent, his servants and agents must not impose any further travel ban on the children until any further order of this Court.
AND THE COURT FURTHER ORDERS BY CONSENT –
3.There be an injunction to and upon the Respondent that, at no time until further order by a justice or senior judicial registrar of Division 1 of this Court or clear written agreement between himself and the applicant wife, he not contact or attempt to contact the wife Ms Irfan children W, X, Y and Z in any way, inclusive of but not limited to telephone or other oral technological communication
4.The injunction upon the husband provided for above only herein apply to him and any agents for and or on his behalf and remain in force until discharge by a justice or senior judicial registrar of Division 1 of this Court or by consent order between the parties or by clear written agreement between the parties.
5.The wife, through her solicitor shall inform the husband, through his solicitor, strictly within 24 hours of the children having returned to Australia, irrespective of business days.
6.The respondent has 21 days to file further response material to the wife’s application for financial orders.
7.The further hearing of this proceeding is adjourned to a senior judicial registrar of this Court.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Irfan & Amin is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
WILSON J
On 27 April 2022, I heard three urgent applications in this proceeding while sitting as the judge allocated to hear and determine urgent applications.
The three applications were brought by the mother. They were –
(a)an order mimicking paragraph 2 of the orders of the Honourable Justice McEvoy made 16 April 2021;
(b)a part property order; and
(c)an injunction for the personal protection of the wife.
On 27 April 2022, the parties agitated all three issues before me at length with a high degree of inefficiency and acrimony. After an inordinate amount of time, consent orders were eventually made on two of the three issues.
An ongoing dispute emerged about the mother’s application for orders requiring the fathers to take all steps to procure the lifting of the travel ban that impeded the four children’s return from Country B to Australia.
The mother sought orders because, so she asserted, the children had been unable to depart from Country B while the travel ban forbade it. The father argued that no order was necessary because a Country B court had recently made orders expunging the travel ban imposed earlier with the consequence that no inhibition presented itself to enabling the mother to retrieve the children from Country B.
To make good his contentions, the father relied on a document written in Country B Language purportedly issued by a Country B court mostly in handwritten form pursuant to which a translator who gave evidence before me deposed to the document stating that the order for the imposition of the travel ban had been expunged.
The main arena of debate before me related to the authenticity of that document allegedly provided by a Country B court, as well as the circumstances in which the travel ban had been imposed on the children in the first place.
These reasons explain why I am not persuaded that the document on which the father relied was a sufficient discharge of the orders made in paragraph 2 of the orders of McEvoy J on 16 February 2021. Without orders specifically requiring the father to do as McEvoy J directed, I entertain very real doubt that the father will, in fact, procure the return of the children form Country B by the lifting of the travel ban.
In those circumstances, I make consent orders relating to the interim part property orders as well as the personal protection injunction. I make orders as was sought by the mother’s solicitor mimicking paragraph 2 of the orders of McEvoy J made 16 February 2021.
RELEVANT FACTUAL SETTING
The four children are born to the applicant and the respondent. Expressed most basically, the parties travelled to Country B with the children for recreational purposes. The father returned to Australia before the mother and children. The mother then returned to Australia, leaving the children in the care of the children’s grandparents. When they attempted to return to Australia an order imposed by Country B authorities impeded their return.
The father asserted he knew nothing of the travel ban that was imposed. A relative of the father, whose name was anglicised to Mr R, made an affidavit setting out the circumstances in which the children’s travel ban came to be imposed. Almost all of the information given by Mr R was hearsay, derived from information and belief and from guesswork, in some respects. Mr R’s affidavit was not at all persuasive from my point of view. Mr R deposed to the father’s brother, essentially of his own motion, applying for the travel ban order in circumstances in which the father, so his solicitor asserted, had no knowledge on which the father provided instructions.
I find that assertion to be curious to say the least, however, I am forbidden from making findings of fact on contested factual issues on the hearing of an application of an interlocutory nature such as this by authorities such as Marvel & Marvel,[1] Eaby v Speelman,[2] AH & SS,[3] Diter & Diter[4] and Pollard & Norberg[5] to name a few. Accordingly, for present purposes, I have proceeded on the basis that the statements by Mr R about how the travel ban came about may be correct, although, equally, his assertions may not withstand the rigors of challenging cross- examination. At present I do not know more than the fact that Mr R made the assertions that he did.
[1] (2010) 43 Fam LR 348.
[2] [2015] FamCAFC 104.
[3] [2010] FamCAFC 13,
[4] [2011] FamCAFC 82.
[5] [2019] FamCA 365.
The person more likely to have given evidence of the circumstance of the children’s travel ban was the father himself. After all, by the orders made by McEvoy J on 16 February 2021, the father was required, quote, “forthwith” – that is to say immediately – to put in train steps for the elimination of the children’s travel ban. Forthwith means precisely what it says. The father failed to depose to steps he took to comply with that obligation. I asked the solicitor appearing for the father why the father failed to give evidence himself of the steps he took to comply with the with orders of McEvoy J. The solicitor for the father submitted, in essence, that the father took the view that he would not give evidence by reason of the mother having threatened the making of a contempt application against the father. Somehow, it was said that the father took the view he would not give evidence while the mother persisted in her threat to bring a contempt application before the father.
Quite frankly, I found that approach to be not easy to follow.
The father maintained that he knew nothing of the travel ban imposed by the Country B court. He asserted that his brother unilaterally procured the ban. The father, through his solicitor, asserted that he, the father, was unaware of any problems in the return of the children.
That position, even if true, left unexplained what the father did to “forthwith” comply with paragraph 2 of McEvoy J’s 16 February 2022 order. It was one thing for Mr R to purport to offer an explanation about certain things. The father volunteered no information about his attempts to procure the removal of the travel ban relating to the travel ban relating to the children, notwithstanding the orders of McEvoy J.
The father relied on a document that became exhibit A being the handwritten record dated 26 April 2022 of events in a Country B court pursuant to which the travel ban was allegedly expunged. An interpreter produced by the father purported to translate that document which was written entirely in Country B Language. No verification was offered by any party that the document was, in fact, an official document from a Country B court. An illegible stamp appeared in several places on the document and the interpreter stated that the signature that appeared on the document purporting to be the signature of a judge of a Country B court was, in fact, that of a judge of a Country B court. The translation of the important passages of the document was less than precise. The interpreter struggled to read to me the operative provisions of the document other than to assert that the document provided that the travel ban had been cancelled, rescinded or somehow annulled.
It seemed peculiar to me that the gravamen of a document as important in the father’s case as was this document that the main evidence about the contents of the document emanated from a translator. No legally qualified person made the slightest attempt to put the document in context to explain who made the orders, if they were, in fact, orders allegedly recorded in the document, who applied for the orders expunging the travel ban earlier placed on the children, on what evidence the order was based and other things. In short, I entertain very real reservations about the document that became exhibit A. I am unwilling to attribute to it the effect urged by the father’s solicitor, namely that the document proved that the travel ban on the children had been lifted so no need existed, so he said, for orders to be made against the husband compelling him to do what McEvoy J had ordered the father to do in paragraph 2 of the orders 16 February 2021. In my view, the document marked as exhibit A was highly equivocal. It would be most unwise of me to rely on translator’s translation of the document without more in order to conclude that the father had done as he was ordered to do.
It seemed to me that an order was necessary compelling the father to do as he had been ordered by paragraph 2 of McEvoy J’s orders.
I make an order in similar terms.
The solicitor for the mother argued before me that the mother had, at all times, intended to take measures to return the children to Australia. He submitted that the obligation to procure the return of the children was embedded in the obligation imposed on the father to secure the lifting of the travel ban. Whether or not that is so was a matter I did not need to decide because the mother’s solicitor simply asked the orders to be made that mimicked paragraph 2 of McEvoy J’s earlier orders. I raised with the mother’s solicitor how the making of the orders sought did not, in terms, impose an enforceable obligation on any party to actually repatriate the children to Australia from Country B. The mother’s solicitor said he recognised that yet he did not seek any order beyond the one he sought.
For those reasons I make the following orders in addition to the consent orders that have been recorded above –
(a)the respondent father must forthwith take all steps and do all things necessary to ensure that the current travel ban which inhibits the children’s return from Country B is lifted; and
(b)the respondent, his servants and agents must not impose any further travel ban on the children until any further order of this Court.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wilson. Associate:
Dated: 28 April 2022
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