KERRIGAN & RAIFFE

[2013] FCCA 1163

FEDERAL CIRCUIT COURT OF AUSTRALIA

KERRIGAN & RAIFFE [2013] FCCA 1163

Catchwords:
FAMILY LAW – Children – interim order for the child to live with mother – father to facilitate the return of the child from (omitted) to Australia.  

FAMILY LAW – Injunction – the father restrained by s.114 injunction from leaving Australia until the child is returned to Australia.

Legislation:  

Family Law Act 1975, ss.65DA, 114

White & Green (No.2) (2009) 41 Fam LR 185

Applicant: MS KERRIGAN

Respondent: MR RAIFFE

File Number: BRC 3509 of 2012

Judgment of: Judge Cassidy

Hearing date: 16 August 2013

Date of Last Submission: 16 August 2013

Delivered at: Brisbane

Delivered on: 16 August 2013

REPRESENTATION

Solicitors for the Applicant: Cooper Family Law

Solicitors for the Respondent: No appearance

ORDERS

1. That the child X born (omitted) 2003 live with the mother

2. That the father MR RAIFFE born (omitted) 1974 do all acts and things and sign all documents to facilitate the return of the child to Australia forthwith.

3. That pursuant to s.114 of the Family Law Act the father MR RAIFFE born (omitted) 1974 be restrained from leaving Australia until such time as the child is returned to Australia.

4. That until further order, the parties, their servants and/or agents be and are hereby restrained by injunction from removing or attempting to remove the child X born (omitted) 2003 from the Commonwealth of Australia.

5. That the Marshal and all officers of the Australian Federal Police and of the police forces of the various States and Territories are requested and empowered to take all necessary steps to give effect to these orders, including all things necessary to include and retain the said child’s name on the Watch list in force at all points of arrival and departure in the Commonwealth of Australia, and to maintain the child’s name on the Watch list until further order of the Court or for a period of 3 years.

6. That upon expiration of the period referred to in Order 5 herein and subject to any further order of a Court of competent jurisdiction, the Australian Federal Police will cause the removal of the child or children’s names from the Watch List.

7. That the father be at liberty to relist the matter upon giving 24 hours notice to the mother.

8. That the Australian Federal Police be forthwith advised of the injunction restraining the father from leaving Australia.

9. That the mother personally serve her application, affidavit and a copy of this order on the father within 3 working days.

10. That the matter be adjourned for mention at 9.30am on 4 September 2013 in the Federal Circuit Court of Australia in Brisbane.

NOTATION:

(A)It is noted that the matter will be listed on the first available date before Judge Cassidy with priority should the father seek an urgent return date.

(B)That pursuant to section 65DA(2) of the Family Law Act1975 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 “Parenting orders – obligations, consequences and who can help” and these particulars are included in these orders.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT BRISBANE

BRC 3509 of 2012

MS KERRIGAN

Applicant

And

MR RAIFFE

Respondent

REASONS FOR JUDGMENT

EX TEMPORE

Introduction

1. This is an ex parte application by the mother to restrain the father from leaving Australia until their child is returned to Australia.  Their child is X, born (omitted) 2003.  She is presently 10 years old.  She is living in (country omitted).  She does not spend any time with her mother.  Her mother did not consent to the father removing the child to (country omitted).  (Country omitted) is not a Hague convention country.  The mother’s evidence is that the father is currently in Brisbane, staying with his brother in the suburb of (omitted).

2. The orders sought by the mother are set out in the initiating application filed 13 August 2013.  On an interim basis, the mother seeks:

   a)That the Court proceed ex parte;

   b)That the Court proceed on an urgent basis;

   c)That the father deliver to the solicitors for the mother all of his passports that are in his possession;

   d)That the solicitors for the mother hold the father’s passports for the father until the child, X, born (omitted) 2003, is returned to the Commonwealth of Australia;

   e)That the father be enjoined from leaving the Commonwealth of Australia;

   f)That upon the child returning to the Commonwealth of Australia, an Airport Watch List order be made restraining the child from being removed from Australia; and

   g)Upon the child returning to Australia, the child live with mother and spend time with and communicate with the father on such terms as particularised on the child’s return.

The Material

1. The materials that I have considered were:

   a)The initiating application filed by the mother on 13 August 2013;

   b)The mother's affidavit filed on the same day; and

   c)The affidavit of non-filing of family dispute resolution certificate, also filed on 13 August 2013.

The Statutory References and Authorities

1. Section 114(3) of the Family Law Act 1975 (as amended) (herein after referred to as “the Act”) is the basis upon which I can consider making an injunction in the terms sought by the mother.  That section provides:

   “A court exercising jurisdiction under this Act in proceedings other than proceedings to which subsection (1) applies may grant an injunction, by interlocutory order or otherwise (including an injunction in aid of the enforcement of a decree), in any case in which it appears to the court to be just or convenient to do so and either unconditionally or upon such terms and conditions as the court considers appropriate.”

2. In White & Green (No. 2) (2009) 41 Fam LR 185 at paragraph 161, the Court said:

   “[161] On 28 October 2008, the Senior Registrar, again on an ex parte basis, ordered that pending the return of the child to Australia, the husband be restrained by injunction from departing Australia.”

3. His Honour noted, at paragraphs 162 and 163, that:

   “[162] … the injunction has remained and remains alive.

   [163] On 17 November 2008, the husband filed a response to the Case Guardian’s application.  In that document, he sought that the orders of 28 October 2008 be discharged.”

4. His Honour, at paragraph 145, noted that:

   “[145] The Full Court ultimately decided that there was power in s 114(3) to enjoin a parent from relocating or to relocate but with the proviso that the injunction was no more than necessary to secure the best interests of a child.  Their Honours described the “proper exercise” of such a power as likely to be rarely used and gave examples of why that might be so.”

5. His Honour, Cronin J, in White & Green (No. 2) (supra) at paragraph 170, said:

   “[170] The power to restrain the husband is not determined by what is in the best interests of the child.  Section 114 is a discretionary provision which requires me to contemplate whether it is proper with respect to the proceedings to which the order relates.  In this case, I am satisfied it is proper to make the order for the reasons that follow.”

6. His Honour then set out, at paragraphs 175 and 176, the law relating to injunctive relief in terms of the test that I have to apply:   

   “[175] To the extent that it is relevant as to whether or not the Senior Registrar should have granted the injunction on an ex parte basis, the test which should have been applied is set out in the decision of the High Court in Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57. There, Gummow and Hayne JJ said:

   The relevant principles in Australia are those explained in Beecham Group Ltd v Bristol Laboratories Pty Ltd This court (Kitto, Taylor, Menzies and Owen JJ) said that on such applications the court addresses itself to two main inquiries, and continued:

   The first is whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief … The second inquiry is … whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted.

   By using the phrase "prima facie case", their Honours did not mean that the plaintiff must show that it is more probable than not that at trial the plaintiff will succeed; it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. That this was the sense in which the court was referring to the notion of a prima facie case is apparent from an observation to that effect made by Kitto J in the course of argument. With reference to the first inquiry, the court continued, in a statement of central importance for this appeal:

   How strong the probability needs to be depends, no doubt, upon the nature of the rights [the plaintiff] asserts and the practical consequences likely to flow from the order he seeks.

   [176] Gummow and Hayne JJ said:

   However, a difference between this court in Beecham and the House of Lords in American Cyanamid lies in the apparent statement by Lord Diplock that, provided the court is satisfied that the plaintiff's claim is not frivolous or vexatious, then there will be a serious question to be tried and this will be sufficient. The critical statement by his Lordship is "[t]he court no doubt must be satisfied that the claim is not frivolous or vexatious, in other words, that there is a serious question to be tried". That was followed by a proposition which appears to reverse matters of onus:

   So unless the material available to the court at the hearing of the application for an interlocutory injunction fails to disclose that the plaintiff has any real prospect of succeeding in his claim for a permanent injunction at the trial, the court should go on to consider whether the balance of convenience lies in favour of granting or refusing the interlocutory relief that is sought. [Emphasis added]

   Those statements do not accord with the doctrine in this court as established by Beecham and should not be followed. They obscure the governing consideration that the requisite strength of the probability of ultimate success depends upon the nature of the rights asserted and the practical consequences likely to flow from the interlocutory order sought.”

The Evidence

1. The mother’s evidence can be summarised as follows. 

2. The respondent in this matter is the mother’s husband.  As I have indicated, they have got a little 10 year old girl that the mother refers to as “X” and X was born in Australia, on the (omitted).

3. The mother is an Australian citizen and the father is a permanent resident of Australia.  The parties separated in December 2011 and between December 2011 and April 2012, X lived with the mother and spent significant time with the father. 

4. In April or May of 2012, the father picked the child up from school and took her to the airport and removed her to (country omitted).  The mother has not spent any time with the child since then.  In July of 2012 I made an order for recovery of the child, however the order was of no use or effect because the child was in (country omitted).

5. In December of 2012, the mother obtained an order for the child to live with her that I made.  On 17 April 2013, the recovery order was noted to not have expired and then on 31 May 2013, the recovery order was cancelled and withdrawn.  The mother’s position was that the child was unlikely to return to Australia and there was no point in proceeding further with any parenting orders. 

6. The mother’s father, who lives in (country omitted), told her that the respondent father had left (country omitted) for Australia and is now in Australia living with his brother at (omitted).  Hence this application was brought with a degree of urgency.

7. I note, in the mother’s affidavit, that she points out that X has special medical needs.  In 2004, the child suffered from a cancer of her eye, called a retinal blastoma.  In 2008 the child underwent a temporal parietal facial graft due to an implant failure.  The child is blind in one eye and the mother’s case is that X may suffer sympathetic opthalmia and lose her sight completely.  The child’s prosthesis is supposed to be reviewed every six months and it seems that the mother says none of this is happening in (country omitted). 

8. The mother does not set out the basis upon which she knows that to be the case but it is certainly a concern that I have in terms of her parenting case.  The mother’s evidence is also that X has only intermittently attended school.  Again, she does not state the source of that information or belief but I do not need to be concerned about that for today.  

9. The mother’s evidence is that the child is attending a disability school and a recent newspaper report indicated that the child’s parents had agreed for the child to live in (country omitted).  The mother says that is false and that it was always intended that the child would be raised in Australia.  The child would remain linked to her (omitted) heritage by regular visits and language and cultural pursuits that would be available to her in Australia.  The mother’s evidence is that the last time she spoke to the child was in August of 2012.

Conclusion

1. In relation to the prima facie case, there must be a probability that the mother will succeed in her parenting orders application, given that there is already an order in place that the child live with the mother that was made on 5 December 2012. 

2. The second question is whether the mother would suffer inconvenience in her case if an injunction were not granted.  I accept that the child has not been returned to Australia and there is evidence that the child will continue to live in (country omitted) and therefore not be able to be subject to a Hague convention proceeding.

3. I conclude that if the injunction is not granted, the father will not return the child to Australia and the mother would not have a relationship with the child.  I am therefore satisfied that it is appropriate to keep the father in Australia and to ensure the return of the child from (country omitted) on the basis of that injunction. 

4. I have only limited evidence as to what passports the father holds.  The order in relation to the surrender of the father’s passports was not pressed and I will not make that order. 

5. I do consider, however, that I should make an order requiring the father to return the child to Australia, in addition to the orders sought by the mother, because absent that positive requirement, there would not necessarily be a basis for the return of the child under the orders that the mother sought.

6. I consider this matter should be returned urgently if the father seeks an urgent return date and I will make orders to that effect.  I also note that if the father fails to return the child without a reasonable excuse, he will have contravened an order of this Court and he may be sentenced to a fine or a term of imprisonment.

7. Those are my reasons and those are my orders and I am going to publish my reasons early next week.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Cassidy.

Date:  21 August 2013.