Madley & Madley and Anor - [2011] FMCAfam 1007

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] FMCAfam 1007
Decision Date: 1 April 2011

CaseChat Overview and Summary

The case of Madley & Madley and Anor involved the parents of a 16-year-old girl who had applied to the Federal Magistrates Court to prevent her removal from Australia. The court was presented with an urgent application to restrain the parents from removing the young person from Australia, as she had expressed a desire to avoid being taken to Lebanon for an arranged marriage. The matter was heard and determined by the Federal Magistrates Court, which issued several interim orders aimed at protecting the girl and ensuring her safety.

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

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 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.

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.

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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