Kandal and Khyatt and Ors
[2010] FMCAfam 508
•6 May 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KANDAL & KHYATT & ORS | [2010] FMCAfam 508 |
| FAMILY LAW – Application by child to restrain her parents and step-father from removing her from the Commonwealth – restraining order protecting the child – orders made ex-parte on the evidence of the Australian Federal Police. |
| Family Law Act 1975, ss.64B, 65C, 68B, 91B |
| Applicant: | MS KANDAL |
| First Respondent: | MS KHYATT |
| Second Respondent: | MR KHYATT |
| Third Respondent: | MR KANDAL |
| File Number: | PAC 2107 of 2010 |
| Judgment of: | Dunkley FM |
| Hearing date: | 6 May 2010 |
| Date of Last Submission: | 6 May 2010 |
| Delivered at: | Sydney |
| Delivered on: | 6 May 2010 |
REPRESENTATION
| Solicitors for the Applicant: | Legal Aid New South Wales |
| No appearance by the First, Second or Third Respondents. |
ORDERS ON AN EX-PARTE BASIS
The requirement for a certificate pursuant to section 60I is dispensed with together with any rule or regulation relating to service.
It is requested that the Australian Federal Police or the Officers of the New South Wales Police assist the solicitors for the Applicant with the service of these orders upon the First, Second and Third Respondent.
Pursuant to section 91B of the Family Law Act 1975 (Cth), it is requested that the Division of Community Services of the New South Wales Department of Human Services, intervene in these proceedings.
The parties provide to the Department of Human Services forthwith all documents thus far filed in these proceedings by the party together with all existing orders and copies of any relevant reports.
Until further order the First Respondent, MS KHYATT, born [in] 1967, the Second Respondent, MR KHYATT, born [in] 1964 and the Third Respondent, Mr Kandal by themselves, their servants or their agents are restrained from removing or attempting to remove the Child [Ms Kandal], born [in] 1993 (female) from the Commonwealth of Australia.
The Marshal of the Federal Magistrates Court of Australia and all officers of the Australian Federal Police and of the police forces of the states and territories of the Commonwealth of Australia are requested to give effect to these orders and to take all necessary steps to restrain either party from removing or attempting to remove the said Child from the Commonwealth of Australia.
Until further order the Commissioner of the Australian Federal Police take all necessary steps to immediately place the said Children’s names on the airport watch list, also known as the PACE Alert system, at all points of arrival and departure in the Commonwealth of Australia.
The Australian Federal Police maintain an airport watch of the said Children on all flights leaving any international airport in all states and territories of the Commonwealth of Australia.
The Australian Federal Police and the Police Forces of the States and Territories of the Commonwealth of Australia assist in the implementation of, and give effect to, these orders.
Each of the First Respondent, Second Respondent and Third Respondent or whomsoever of those that hold any passport in the name of the Applicant shall cause that passport to be delivered to the Registrar of the Federal Magistrates Court at 1-3 George Street, Parramatta within 48 hours.
Pursuant to section 68B each of the First Respondent, MS KHYATT, born [in] 1967 and the Second Respondent, MR KHYATT, born [in] 1964 and the Third Respondent, Mr Kandal jointly and severally are restrained by way of injunction from assaulting, threatening, harassing or intimidating the Applicant, Ms Kandal, born [in] 1993 or otherwise engaging in behaviour that causes the Applicant, Ms Kandal, born [in] 1993 to be reasonably fearful for her personal safety.
Pursuant to section 65DA(2) of the Family Law Act 1975, 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 Attachment A and these particulars are included in these orders.
THE COURT FURTHER ORDERS THAT:
The case is to be relisted by the solicitors for the Applicant within two business days of the service of these orders on any of the First, Second and/or Third Respondent so as to enable further directions or orders to be made.
IT IS NOTED that publication of this judgment under the pseudonym Kandal & Khyatt & Ors is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
PAC 2107 of 2010
| MS KANDAL |
Applicant
And
| MS KHYATT |
First Respondent
| MR KHYATT |
Second Respondent
| MR KANDAL |
Third Respondent
REASONS FOR JUDGMENT
These are urgent proceedings relating to a 17-year-old girl, Ms Kandal, born [in] 1993. They are being dealt with on an ex-parte basis. On or about 4 May 2010, the Australian Federal Police operations centre was contacted by telephone by the Child.
An officer of the Australian Federal Police has sworn an affidavit in support of the application today and given oral evidence.
That officer, as a result of the telephone call from the Child, formed the view that the Child was quite frightened. The Child said words to the effect that she was being taken against her will by her Mother, and perhaps other family members, to Lebanon to be married.
It was intimated that both her Step-Father, with whom she lived, and her Father supported her removal from Australia and that she understood that she was booked to fly out of Australia on 19 May 2010.
The Child was and is living with her Mother and Step-Father. The Child gave enough personal details to the federal police officer to enable verification checks as to identity and residence to be undertaken. Those checks were confirmatory of the information provided to the Australian Federal Police.
The Child has finalised her high school education.
The Federal Police have an address at which she lives and a mobile telephone number which they can use to contact her but the Child does not always answer that mobile telephone number.
She has indicated to the Australian Federal Police that she was calling whilst her Mother was absent and that she might need to hang up at any point in time.
There has been further limited communication with the Child by the Australian Federal Police since the initial contact. The Child indicated to the Australian Federal Police that she was aware of the Watch List provisions and wanted to be placed on that Watch List. She also sought as minimal involvement as possible from other authorities.
The Australian Federal Police have dealt with this on a sensitive and appropriate level. The Department of Human Services have been notified, as have the appropriate cultural organisations. Each of the Department and those cultural organisations has indicated to the Federal Police that they will provide intervention and emergency housing assistance if required.
As much as possible, the Australian Federal Police have verified the information that they have been given. They do not, on reasonably held grounds, believe the call to be in any way a hoax or as a result of a dispute between a Child and a parent. They have undertaken all reasonable enquiries, considering the difficult circumstances.
Legal Aid New South Wales, to their credit, have also assisted the Australian Federal Police and appear today on an amicus and duty basis in respect of the Child, and indicate that they will continue to do so into the future. For that they are to be commended as are the Police for the way that they have dealt with the situation.
The Australian Federal Police have indicated that they will assist, as much as possible, the Child’s solicitors to serve the Orders that are to be made.
Section 65C of the Family Law Act 1975 (Cth) enables a Child to be a party in applying for a parenting order. Section 64B defines the meaning of parenting order. Section 64B(2)(i) includes, within that definition, an order relating to any aspect of the care, welfare and development of the Child or any other aspect of parental responsibility for the Child.
As a consequence, the Child is to be a party. She seeks orders placing herself on the Airport Watch List and requesting intervention by the Department of Human Services.
By the court’s own motion, and so as to protect the Child, an Order will be made under section 68B. That Order is made having regard to the Child’s living circumstances, what she says she understands is to happen to her, and the consequential fear that she has.
Given the real possibility of parental interference with these Orders, they are being made on an ex parte basis. They are also being made so as to protect the Child. Orders made must be in the Child’s best interest. These Orders give more effect to the objects in sections 60B(1)(b) and (c). They are being made so as to protect the Child from physical or psychological harm from being subject to or exposed to abuse, neglect or family violence.
Consideration has been given to the wishes as expressed by the Child to the Australian Federal Police. The Orders accord with what is understood to be the Child’s wishes. Given her age and given the means by which she has contacted the Federal Police and the intervention that she has sought, significant weight is attached to those wishes. The Child is, it goes without saying, of mature years and has shown by her actions a degree of resourcefulness so as to indicate that she has a real appreciation of what is occurring.
An early re-listing date will be provided, once service is effected, so as to ensure a timely review of the ex-parte orders that are being made. This will enable the Respondents to quickly put their case before the Court.
Given the ex-parte hearing the Orders are as minimally intrusive as possible.
Given the means by which the Australian Federal Police were contacted, there is no requirement for the Applicant to personally swear a supporting Affidavit, at this time. The Affidavit and oral evidence of the relevant Federal Police officer are sufficient and compelling enough to cause the making of the Orders.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Dunkley FM
Associate: L. Campbell
Date: 20 May 2010
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