Lingford and Lingford

[2007] FamCA 788

FAMILY COURT OF AUSTRALIA

LINGFORD & LINGFORD [2007] FamCA 788

FAMILY LAW – CHILD ABDUCTION – Child previously taken from Australia without father’s knowledge - Restraint from removing child from Australia

Family Law Act 1975 (Cth)

APPLICANT: MR LINGFORD

RESPONDENT: MRS LINGFORD

FILE NUMBER: MLC 8478 of 2007

DATE DELIVERED: 27 July 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 27 July 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: MS STEWART

SOLICITOR FOR THE APPLICANT: JC LAWYERS

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

Orders

1. That the applicant husband have leave to proceed forthwith without notice to the respondent wife.

2. That until further order the husband and wife by themselves, their servants or agents be and are each hereby restrained from removing, attempting to remove, or causing or permitting the removal of R born in May 1995 from the Commonwealth of Australia AND IT IS FURTHER ORDERED that the Australian Federal Police place the name of the said child on the Airport Watch list in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch list until further order of the Court.

3. That all Officers of the Department of Immigration and Multicultural Affairs or other authorities attending at any international departure point of the Commonwealth of Australia are authorised to and requested to provide to the respondent wife a copy of these orders.

4. That the further hearing of the husband’s application filed this day be adjourned to Wednesday 1 August 2007 at 9.45am in the Senior Registrar’s list of cases.

5. I reserve all questions of costs of this day.

IT IS CERTIFIED:

1. That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 8478  of 2007

MR LINGFORD

Applicant

And

MRS LINGFORD

Respondent

REASONS FOR JUDGMENT

1. This is an application that has been brought on an urgency basis and the Registrar has expedited it to be dealt with without notice or without any attempt at service.

2. I am dealing with an application in relation to a 12 year old boy by the name of R.  The substantive application is basically very short on details but having regard to the urgency I am not troubled about that.  This case has been brought as the father fears, as a result of what he has been told, that the mother proposes to remove the child from the Commonwealth of Australia this Sunday.

3. The husband is aged 58 and the wife 48.  They were previously married, and separated in 2002.  The wife undoubtedly has been the primary carer of the child and there were no significant problems between father and son until sometime last year when things have taken a turn for the worse.  It is quite clear from reading the affidavit of the father, which I accept is the only evidence I have at this stage, that the wife has taken the child to Poland, which appears to be her country of origin, during the latter part of 2006 and that was done without any advice to the husband.  On that basis it is clear that the wife seems to have very little regard for the views of the father of this child.

4. There are also some strong suggestions that the child has had difficulties at school but notwithstanding that the wife seems to have taken him out of the school and sent him to Poland.  What I have been told is that he travelled to Poland in the absence of his mother to a country and to relatives that do not speak English or do not have a great deal of English and he, likewise, does not have a great deal, if any, Polish.

5. The communications between the child and father have been by email but recently, the child indicated that he was back in Australia.  That had not been something that the wife had indicated to the husband.  The correspondence between not only the solicitor for the husband but also the husband himself with the wife seems to me to have been a very sensible approach of trying to resolve issues.  The wife had ignored that.  It seems to me that she does not have very much regard for the husband's position as the father of the child.

6. The evidence now is that the child is back in Australia and he has indicated to his father that he is being taken to Poland this coming Sunday.  Again there has been no indication by the wife of any consultation.  It is of some concern that this move appears to be far more permanent than the previous one because the husband has been told that the child is living with his mother in a caravan park and the home in which she was living has now been sold.  There have been a number of attempts by the husband to contact the relevant caravan park to find out where the child is living but they have been unsuccessful.

7. I think this is a case where the urgency requires me to waive the usual service requirements and proceed forthwith to at least prevent the child from leaving the Commonwealth of Australia and I propose to make an order in those terms.  I also think it is more appropriate to worry about the service issues and the difficulties that might arise from that when the matter comes back before the Senior Registrar.

8. In the circumstances I propose to adjourn the matter to Wednesday, 1 August 2007 at 9.45 am in the Senior Registrar's list of cases. 

I certify that the preceding Eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  6 August 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as LINGFORD & LINGFORD