MACLEOD & MILLER

[2015] FCCA 581

FEDERAL CIRCUIT COURT OF AUSTRALIA

MACLEOD & MILLER [2015] FCCA 581

Catchwords:

FAMILY LAW – Parenting – interim proceedings – children believed to be in (country omitted) – father seeks to have injunction restraining him from leaving Australia lifted.

Legislation:

Family Law Act 1975, s.114(3)

Zanda & Zanda [2014] FamCAFC 173
Sampson & Hartnett (No.10) (2007) FLC 93-350

Applicant: MS MACLEOD

Respondent: MR MILLER

File Number: MLC 9820 of 2014

Judgment of: Judge Harland

Hearing date: 5 March 2015

Date of Last Submission: 5 March 2015

Delivered at: Melbourne

Delivered on: 5 March 2015

REPRESENTATION

Counsel for the Applicant: Mr Horsfall

Solicitors for the Applicant: Victoria Legal Aid

Counsel for the Respondent: N/A

Solicitors for the Respondent: Ms Bourke

ORDERS

1. The matter is adjourned to 23 June 2015 at 9.30am for mention before Judge Bender.

2. The father shall provide any communication between himself and his family with respect to the children X born (omitted) 2010, Y born (omitted) 2012 and Z born (omitted) 2012 to the mother’s solicitors within 7 days.

3. Liberty to apply is granted to the parties.

AND THE COURT NOTES THAT:

A.Pursuant to order 6 of the orders made on 12 December 2014, the father MR MILLER shall continue to remain on the Airport Watch List.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 9820 of 2014

MS MACLEOD

Applicant

And

MR MILLER

Respondent

REASONS FOR JUDGMENT

1. The children of the relationship X (“X”), aged 5 and twins Y (“Y”) and Z (“Z”), aged 3 are believed to be in (country omitted). Both their parents are currently in Australia.

2. The applicant mother commenced the proceedings on 30 October 2014, seeking injunctions restraining the father from leaving Australia and seeking the father to direct members of the paternal family to return the children to the mother in Australia.

3. The matter was first listed before Judge Bender on 31 October 2014. The court made several ex-parte orders on that day. Order 4 of those orders placed the father on the Airport Watch List. Order 5 required the children to be returned to Australia immediately and the father was required to do all acts and things necessary to direct members of his family to return the children to Australia.

4. Further directions were made in the matter on 14 November 2014 when the father appeared in person.

5. When the matter was next in court on 12 December 2014, both parties were represented. The court made further orders enabling the mother to travel to (country omitted) within 14 days to collect the children and return them to Australia. Orders noted that the Federal Attorney General’s Department had given the mother a grant of assistance of $11,400, for the purposes of travelling to (country omitted) and obtaining legal assistance in (country omitted).

6. The matter came before me on 5 March 2014. The children have not been returned to Australia and are now believed to be in (country omitted).

7. At the time the mother first made her application, she believed the children were living with the paternal grandmother in (country omitted). Both parents are from (country omitted) and were married in 2009 in Australia, according to traditional rights. All three children were born in Australia. The parties separated in April 2014.

8. The children had been living in (country omitted) since December 2013. The parties travelled to (country omitted) and agreed to leave the children in (country omitted) in the care of the maternal grandmother whilst the mother completed her studies. At that time the parties were living in Western Australia. They subsequently moved to Melbourne.

9. The mother says that she and the respondent had agreed for the children to return to Australia as she had almost completed a course. She says she purchased tickets and made arrangements with the respondent’s stepbrother to return the children. The mother says that instead of taking the children to the airport as agreed, he took the children to the paternal grandmother’s home where they have been living since 27 October 2014.

10. The applicant mother says she became aware of plans for the children to live in (country omitted) with the paternal grandfather. She said she had heard from friends that the respondent father was also planning to travel there to live. She expressed her fears that if the children travelled to (country omitted) she would not see them again.

11. The mother attached a travel advisory to her first affidavit which advises against travel to (country omitted) because of “ongoing violence political unrest”.

12. The mother filed a further affidavit on the day of the first court appearance. She provided further background information being that the parents both arrived in Australia as refugees and subsequently became Australian citizens. She says the children are not citizens of (country omitted) or (country omitted) and do not have dual citizenship.

13. The mother says she believes that the father and paternal grandfather had removed the children from her mother’s care because they have separated and because of cultural issues arising from that. She says that in their culture, the father has the right to take the children and keep them from her unless her family returns the dowry payment of

    
    

    80 cows. She says his family has not accepted the separation and she fears not being able to see the children again.

14. In support of her ex-parte application, she included a screenshot of the father’s Facebook page and an entry which said “ladies and gentlemen might visit to homeland is at the corner because my wife left me with three kids, twin boys and one daughter. Maybe going to get the new mother. If anyone advise me please.” She also says that the father threatened her and told her to start her own family because she would not see the children again. (country omitted) is not a Hague convention country.

15. The father filed a response on 1 December 2014 seeking the removal of his name from the Airport Watch List, an order that the children live with him and that the parties have liberty to apply for further orders upon the children’s return to Australia.

16. In his affidavit in support, the father denies there being a joint decision for the children to live in (country omitted) with the mother’s mother. The father says he has no intention of living in (country omitted) and does not seek to have the children live there. He says that if he was to travel to (country omitted), he would discuss the matter with his family and the applicant’s family to try and arrange the children to be returned to Australia. He says he has no intention of taking the children to (country omitted). He says he and his family would not prevent the mother from seeing the children.

17. The father says that his mother is looking after the children and that he provides financial support for them. He then says that under (country omitted) tradition, the applicant’s father is in charge of where the children should live and that her father is the one who has refused to return the children to Australia. He agrees that under (country omitted) tradition, the children remain with the husband’s family after a divorce.

18. The father admitted the contents of the Facebook post and says he was talking about maybe visiting his homeland but not going there to live. He gives no explanation for his comments about finding the children a new mother. 

19. In his affidavit the father says that it is the applicant’s father who has control over whether or not the children should be returned to Australia, but also says that currently the children are living with his mother and brother in (country omitted). He says under (country omitted) tradition, the couple needs to meet with both sets of parents to attempt to resolve the dispute after marital breakdown. He says that if he is permitted to go to (country omitted), he will do everything he can to have the children returned to Australia. He denies having any documents of the children, such as birth certificates and the like.

20. An annexure to the father’s affidavit is an email purportedly from the applicant’s father stating that he will not return the children to Australia and that she is satisfied as to the arrangements. It talks about the mother not being in a position to claim ownership of the children.

21. The mother filed a further affidavit on 8 December 2014 replying to the father’s affidavit. The mother says her relationship with her father is strained and she has not spoken to him since April 2014, which was around the time she separated from the respondent. She says her father is a traditional (country omitted) man who does not believe in divorce.  She says the father has disowned her and will not speak to her unless she reconciled with the respondent. She says she does not believe that the email annexed to the father’s affidavit is genuine because she is aware her father does not have an email address. She believes that email is from her stepbrother who has the same name as her father. He says her stepbrother had threatened to harm her if she returns to (country omitted) and she says that email sounds like something he would write. I observed the email and it does not look like an email typically printed from a Hotmail account but rather looks like a typed document. I have some doubts whether or not that is a genuine email.

22. The mother says she found out recently that the father had been given another wife in (country omitted) around October 2014, that she is waiting for him and she will assist with the children. She also says that the father has told her on several occasions he finds life in Australia hard and wants to return to (country omitted). The mother says she is concerned that the respondent will instruct his family to hide the children in (country omitted).

23. The father filed a further affidavit on 5 February 2015. He said he instructed his family to return the children.  However, the mother’s father and stepbrother had intervened and sent the children to (country omitted). He claims that the children are living with the applicant’s family and not his. He says it is not in the children’s best interests for him to be prevented from going to (country omitted). He says he understands that the mother does not feel safe going to (country omitted) but if he is not allowed to go, the children will not see either of their parents. He says he will go and attempt to bring children to Australia. There is another email attached to his affidavit. This email does look like it is printed from an email program.

24. The mother responded to the father’s affidavit and said that relatives told her that the father telephoned her father and stepbrother to inform them that she had received funding to go to (country omitted) and that her brother removed the children to (country omitted).  She says the children are living with the father’s family in a remote village. She attaches a screenshot from a Facebook posting from the respondent father’s cousin, it indicates the children are living with his family. She says there are issues of cultural shame and the dowry, which is why her father has been supportive of the respondent’s family. She expresses concern to the children’s welfare and for their financial circumstances. She maintained her position that if the father is allowed to travel, he will not return to Australia and the children will be lost to her. She is hopeful that if the Airport Watch List order remains in place, the children may be allowed to return to Australia one day. She says the father is in touch with his family and is able to communicate with the children, where she is not.

25. The mother says the father is in contempt of the Court’s orders. She wants the father to remain on the Airport Watch List and seeks an order for the father to produce all correspondence between him and his family. The father says the purpose of the order placing him on the Airport Watch List was to prevent the children being moved to

    
    

    (country omitted). That has happened anyway. Therefore he says the injunction is futile and should be lifted.

26. I do not accept the father’s argument. This is an interim determination and there are many contested issues of fact which I cannot determine at this stage of the proceedings.  The father does not offer any sort of surety to ensure his return. (country omitted) and (country omitted) are not signatories to the Hague Convention On Civil Aspects of Child Abduction.  The state of the evidence is such that I cannot be satisfied that the injunction is futile now that the children have been moved to

    
    

    (country omitted). It is clear that the father has contact with the family members looking after the children.  It may be that if they are aware that the father will not be able to travel to (country omitted), their attitude will change.

27. The source of the Court’s power to restrain a parent’s freedom of movement is found in section 114(3) of the Family Law Act. See the Full Court decision of Zanda & Zanda [2014] FamCAFC 173 and Sampson & Hartnett(No.10) (2007) FLC 93-350. It is a serious step for the Court to take but I am satisfied that it is justified to continue the injunction for a further 3 months. The parties have liberty to apply so they can bring the matter back earlier if there has been a change in circumstances. Both parties will be able to put on further evidence to clarify their respective positions. Whether or not the injunction should continue can be reviewed when the matter comes back before

    
    

    Judge Bender.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Harland

Associate: 

Date:  16 March 2015