Kelko and Moti

[2008] FamCA 740

FAMILY COURT OF AUSTRALIA

KELKO & MOTI [2008] FamCA 740

FAMILY LAW  -  CHILDREN  -  child removed from Australia to Kenya, without consent of father – no parenting orders or application for parenting orders made at time of removal – declaration of Australian law  -  request for provision of documents required to initiate proceedings in Kenya  -  Kenya not party to Hague Convention on Child Abduction

Family Law Act 1975 (Cth) ss 4(1), 61C(1), 65Y(1)

FATHER: Mr Kelko

MOTHER: Ms Moti

FILE NUMBER: MLC 7185 of 2008

DATE DELIVERED: 13 August, 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 13 August, 2008

REPRESENTATION

THE FATHER: In person

Orders

IT IS DECLARED

1. That pursuant to s.61C(1) of the Family Law Act 1975 the parties MR KELKO and MS MOTI have shared parental responsibility for their son, …, (“the child”) born … July, 2007.

2. That no order has been made by an Australian court exercising jurisdiction under the Family Law Act 1975 which confers sole parental responsibility for the child on the mother.

3. That no order has been made by an Australian court exercising jurisdiction under the Family Law Act 1975 which would allow the mother to remove the child from the Commonwealth of Australia without the consent of the father and the father has not consented to any such removal.

4. That the child was taken by the mother from the Commonwealth of Australia on a date in July 2008 without the consent of the father or order of a court. 

IT IS REQUESTED

1. That the Department of Foreign Affairs and Trade or such other department as is responsible for border control provide to the father, at his expense and as soon as practicable, the following :

   (a)details of the child’s Australian passport, including the passport number, place of issue, date of issue and date of expiry;  and

   (b)a copy of the departure card signed by the mother on her departure with the child from Australia in July 2008. 

IT IS DIRECTED

1. That the reasons for judgment this day be transcribed and a copy be placed on the court file. 

2. That the application filed 7 August, 2008 be otherwise dismissed and removed from the list of cases awaiting finalisation.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 7185 of 2008

MR KELKO

Father

And

MS MOTI

Mother

REASONS FOR JUDGMENT

1. Before the court is an application brought ex-parte by the father of the parties’ child, a son born in July 2007.  In support of the application the father swore an affidavit, which was filed on 7 August 2008.  I have taken further evidence from him today. 

2. The evidence establishes that the child’s parents were in a relationship for a short period prior to his birth.  The father is an Australian citizen, having lived here for some 15 years.  The mother is a Kenyan citizen who spent, on his evidence, some four years in Australia.  After the child’s birth the father saw the child, by arrangement with the mother.  No court orders were sought by either of them.  He last saw the child on 5 July 2008.  

3. I am satisfied that some time after that date, the mother removed the child from the Commonwealth of Australia, without the consent of the father or order of the court.  Despite diligent endeavours, the father has been unable to find the whereabouts of the mother.  Emails in evidence confirm the high probability that she is currently living in Kenya, possibly in Nairobi, and possibly with the child's maternal grandmother.

4. The child was habitually resident in Australia at the time of his removal.  However, Kenya is not a party to the Hague Convention.  Thus, the State Central Authority cannot assist the father.

5. The father has jurisdiction to bring this application in this court.  The child is an Australian citizen and the father (who is also an Australian citizen) is here in Australia.

6. Pursuant to Australian law both parents of a child have parental responsibility for that child unless and until a court makes an order to the contrary; see s.61C(1) of the Family Law Act 1975. No order to the contrary has been made. In those circumstances, decisions about major long-term issues affecting the child must be made by both parties. Section (4)(1) of the Act defines major long term issues to include “changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with the other parent”. It is trite to say that a decision to remove a child from his place of habitual residence to another country constitutes a major, long-term issue.

7. Pursuant to Australian law, once a parenting order is made, a parent cannot remove a child from the Commonwealth of Australia without the consent of the other parent or by order of the court;  see s.65Y(1).

8. The father is not a lawyer and the application was drawn by him.  He seeks orders which may assist him to find his son and, he hopes, bring him back to Australia, where the parties and the child lived prior to the child’s removal.  He also seeks custody of the child;  “custody” equates with an order for residence and an order for responsibility for a child's day-to-day care, welfare and development. 

9. A number of the orders the father seeks are outside the jurisdiction of the court.  The court can make declarations about Australian law, which may be of assistance to the father in the proceedings he is endeavouring to bring in Nairobi. 

10. The father’s evidence is that in order to bring those proceedings, he is required to produce evidence which, at the moment, is beyond his power to produce.  The child’s passport is required or, at the very least, details of the child’s Australian passport.  The Kenyan court also requires evidence about the circumstances in which the child left Australia.  That information has not been provided to the father by the relevant government departments, as it is protected, for reasons relating to security and privacy. 

11. I cannot guarantee that these orders will result in the father obtaining the passport details or a copy of the relevant departure card, completed by the mother when she and the child left Australia.  I will request the assistance of the relevant department, as I am satisfied that the best interests of the child, an Australian citizen, demand that proceedings relating to his care, welfare and development in the short and the long term, be properly determined by a court of competent jurisdiction, whether here or in Kenya.  If there are barriers to the father bringing proceedings in Kenya, this important issue cannot be properly determined there and it is for that reason that I make orders to facilitate the father’s quest for essential evidence.

I certify that the preceding
11 paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.

Dated the           day of            2008.

…………………………………………
Associate.