FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MADLEY & MADLEY and ANOR | [2011] FMCAfam 1007 |
| FAMILY LAW – Ex parte application made by child (16 years) for orders placing herself on the Airport Watchlist to prevent an arranged marriage taking place in a non Hague Convention country – arranged marriage planned by parents. |
| Family Law Act 1975, ss.68B, 68C, 60CC, 60B, 65DAA Marriage Act 1961, ss.12, 23 Federal Magistrates Court Rules 2001 International Convention on the Rights of the Child, Article 12 |
| Mabo v Queensland [1992] HCA 23 Minister of Ethnic Affairs v Teoh [1995] HCA 20 Dylan & Dylan [2007] FamCA 842 |
| Applicant: | MS MADLEY |
| First Respondent: | MRS MADLEY |
| Second Respondent: | MR MADLEY |
| File Number: | PAC 1429 of 2011 |
| Judgment of: | Harman FM |
| Hearing date: | 1 April 2011 |
| Date of Last Submission: | 1 April 2011 |
| Delivered at: | Parramatta |
| Delivered on: | 1 April 2011 |
REPRESENTATION
| Solicitors for the Applicant: | Legal Aid New South Wales |
ORDERS
Pending further order, each of Mrs Madley, being the mother of Ms Madley, born [in] 1995, and Mr Madley, being Ms Madley's father, shall be and are hereby restrained from removing, attempting or causing Ms Madley's removal from the Commonwealth of Australia.
Within 72 hours (ie by 4.30 pm on Monday, 4 April 2011) any passport for the young person, Ms Madley, born [in] 1995, is to be surrendered by Ms Madley's parents, or such of them as possess it, to the Registrar of this court, and thereafter held by the Registrar pending further order.
In the event that Ms Madley's passport is not surrendered to the Registry of this Court by 4.30pm on 4 April 2011, then as soon as practicable following the commencement of business 5 April 2011, a request is to be forwarded to the minister seized with the responsibility for the issue of passports requesting the immediate cancellation of any passport for the child, Ms Madley, born [in] 1995.
Until further order the applicant and the respondent, by themselves, their servants or their agents or of Ms Madley’s own volition are restrained from removing or attempting to remove Ms Madley born [in] 1995 (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 young person 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…
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- Case
- [2011] FMCAfam 1007
- Decision Date
CaseChat Overview and Summary
The primary legal issues the court had to decide were whether to grant the interim orders sought by the girl and, if so, what specific terms those orders should include. The court was required to balance the girl’s right to personal autonomy and protection against the rights of her parents under family law principles. Additionally, the court had to consider the implications of international child abduction and the potential for breach of the Family Law Act 1975 provisions.
The court found that the girl had demonstrated a clear and present danger to her personal welfare if she were removed from Australia. It took into account her age, her expressed wishes, and the potential for an arranged marriage which she opposed. The court issued several detailed interim orders to protect the girl, including restraining her parents from removing her from Australia, requiring the surrender of her passport, and placing her name on an airport watch list to prevent her departure. The court also directed the Australian Federal Police to assist in enforcing these orders and ensuring the girl’s safety. The orders were intended to remain in place until further directions from the court, ensuring that the girl’s wishes and welfare were safeguarded during the proceedings.
Orders
Orders of the court
1.
Pending further order, each of Mrs Madley, being the mother of Ms Madley, born [in] 1995, and Mr Madley, being Ms Madley's father, shall be and are hereby restrained from removing, attempting or causing Ms Madley's removal from the Commonwealth of Australia.
2.
Within 72 hours (ie by 4.30 pm on Monday, 4 April 2011) any passport for the young person, Ms Madley, born [in] 1995, is to be surrendered by Ms Madley's parents, or such of them as possess it, to the Registrar of this court, and thereafter held by the Registrar pending further order.
3.
In the event that Ms Madley's passport is not surrendered to the Registry of this Court by 4.30pm on 4 April 2011, then as soon as practicable following the commencement of business 5 April 2011, a request is to be forwarded to the minister seized with the responsibility for the issue of passports requesting the immediate cancellation of any passport for the child, Ms Madley, born [in] 1995.
4.
Until further order the applicant and the respondent, by themselves, their servants or their agents or of Ms Madley’s own volition are restrained from removing or attempting to remove Ms Madley born [in] 1995 (female) from the Commonwealth of Australia.
5.
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 young person from the Commonwealth of Australia.
6.
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.
7.
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.
8.
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.
9.
These proceedings are adjourned for further mention or directions at 9.30 am on 11 April 2011. I will do that on the basis that the young person is 16 years of age and has provided instructions as the applicant in these proceedings to avoid her removal to Lebanon for an arranged marriage.
10.
Direct that each of the respondents be personally served with the initiating application and affidavit and a copy of these orders as soon as possible.
11.
Pursuant to s.68B of the Family Law Act 1975, and pending further order, that each of the respondents, being each of Ms Madley's parents, shall be and are hereby restrained from:
(a) Assaulting, molesting, harassing, threatening or otherwise intimidating Ms Madley.
(b) Questioning Ms Madley with respect to these proceedings, or requesting, permitting or allowing any other person to do so.
(c) Causing Ms Madley's removal from any school which she presently attends and at which she is enrolled.
12.
I note that the above order, pursuant to section 68B, is an order made for the young person's personal protection and welfare, and as such, an automatic power of arrest without warrant applies pursuant to s.68C in the event that any police officer believes, on reasonable grounds, that the injunction has been breached.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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