Mahony and Nierre

[2016] FamCA 83

FAMILY COURT OF AUSTRALIA

MAHONY & NIERRE [2016] FamCA 83

FAMILY LAW – CHILDREN – Application to restrain the mother from leaving Australia – Application to return children to Australia – Where no Hague Convention application has been made – Injunction under s 114(3) of the Family Law Act – Whether such an order is just or convenient – Where the mother has submitted to the jurisdiction –  Found not to be just or convenient – Application dismissed.

Family Law Act 1975 (Cth) s 114

Zanda & Zanda [2014] FamCAFC 173

APPLICANT: Mr Mahony

RESPONDENT: Ms Nierre

FILE NUMBER: PAC 5871 of 2015

DATE DELIVERED: 17 February 2016

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 9 February 2016

REPRESENTATION

APPLICANT: Litigant in person

SOLICITOR FOR THE RESPONDENT: Rafton Family Lawyers

Orders

1. The father’s Application in a Case filed 2 December 2015 is dismissed.

2. The parties shall participate in the Child Responsive Program with a Family Consultant at 9am on 14 June 2016.

3. The proceedings is listed for directions in relation the progression of the property proceedings before Registrar Tran at 11am on 19 April 2016.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Mahony & Nierre has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 5871  of 2015

Mr Mahony

Applicant

And

Ms Nierre

Respondent

REASONS FOR JUDGMENT

Introduction

1. On 10 February 2016, I dismissed the father’s application for an order restraining the mother from leaving Australia and placing her name on the family law watch list to give effect to that order, and an order for the return of the parties’ two children to Australia. I indicated that I would publish my reasons for orders at a later stage. These are those reasons.

Background

1. The father and the mother grew up and were married in Country B in 1997, or 1998.  The parents subsequently moved to Australia.

2. Their first child, C, was born in 2006 and their second child, D, was born in 2011.

3. The parents initially separated in mid-to-late 2013 and the children lived with the mother. In mid-2014 the parents attended counselling but were unable to resolve their differences.

4. On 28 July 2014 the mother and children left Australia for Country B.

5. As I understand it, the father claims that the mother and children only went to Country B for a holiday for two months. The mother says that she did not specify to the father how long she would remain in Country B, nor was the matter discussed.

6. The children were enrolled in a private school in Country B shortly after their arrival. The father has paid for some of the school fees and associated costs for the children. The mother obtained full time employment in Country B in March 2015.

7. The father visited Country B in December 2014 and spent time with the children.

8. In January 2015 the father says he contacted “the Central Authority and International Social Services” who he says advised him that he needed to start proceedings to get the children back to Australia. The father says he sought and obtained legal advice.

9. The father again visited Country B in July 2015 and spent time with the children. The father says that when he returned to Australia following this visit he again thought about starting legal proceedings under the Hague Convention, but felt overwhelmed and did not commence any proceedings.

10. The father made a further trip to Country B in November 2015 to visit his ageing parents and to spend some time with the children. Following this visit, the father said that he again contacted the Central Authority and told them he “wanted to go ahead with getting the children back”. The father claims that he was advised by the Central Authority to make an urgent application so the Central Authority could detain the mother in Australia and question her about returning the children home.

11. On 2 December 2015 the father commenced proceedings, which sought identical orders on an interim and final basis that the mother be restrained from leaving Australia and that the children “be returned to the Commonwealth of Australia”. He did not seek parenting orders.  When the matter was first listed before a judge of the Federal Circuit Court the mother did not appear. The father was ordered to provide a copy of the documents he had filed in the proceedings to the Australian Central Authority. A few days later, on the second occasion in court the mother again did not appear but was legally represented and the matter was transferred to this Court. The judge noted that “[i]t would appear that the Central Authority has instructions from the father and is in the process of commencing proceedings under the Hague Convention”.

12. There is no evidence that proceedings under the 1980 Hague Convention on Civil Aspects of International Child Abduction have been commenced.

13. Although the mother does not address this in her affidavit, I understand that she arrived in Australia shortly before the proceedings on 9 February 2016. The children remain in Country B being cared for by their maternal grandparents. On 9 February the mother filed a Response to the father’s Initiating Application, seeking parenting and property orders. In other words, the mother has herself submitted to the jurisdiction of this Court with respect to parenting which as I understand it, is what the father is seeking to achieve.

The father’s application

1. The father seeks an order in the following terms “that until further order each party, (sic) [Ms Nierre] born … 1975 is hereby restrained by injunction, and irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975, from leaving the Commonwealth of Australia” and requests that the mother’s name be placed on the family law watch list to give effect to the order.  He also seeks an order “that the children be returned to the Commonwealth of Australia”.

2. The source of power to make an injunction restraining the mother from leaving Australia is found in s 114(3) of the Family Law Act 1975 (Cth)[1]. Such an injunction may be granted where it appears to the Court “to be just or convenient to do so”. The father’s contention is that such an order is necessary to enable him to be able to bring “Hague Convention proceedings” in relation to the children. In his affidavit the father says that the Central Authority advised him that he needed to make an urgent application so that the Central Authority could “detain [the mother] in Australia and question her about returning the children home.”

   [1] Zanda & Zanda [2014] FamCAFC 173.

3. It appears that the father’s understanding of the process for return of children unlawfully removed under the Hague Convention is imperfect. Further, the very outcome the father is seeking to achieve in detaining the mother in Australia as I understand, is to ensure that any parenting proceedings will take place in Australia. The mother in her Response filed on 9 February 2016 clearly also envisages that the parenting proceedings take place in Australia.

4. In addition to the incorrect understanding of Hague proceedings and the fact that the mother is now seeking to have the parenting proceedings determined in Australia, there are a number of other features of the father’s application which indicate that it is neither just or convenient to make the orders he seeks.

5. First, the order is unlimited as to time and would operate to prevent the mother from leaving Australia indefinitely. Secondly, and of great significance, the children, who are aged nine and four, are currently in Country B being cared for by maternal grandparents.  Such an injunction would deprive them of their mother who has been their primary carer throughout their life.  The mother would also lose her employment in Country B, which she says is her only source of income, if she were required to remain in Australia. Further, in seeking orders herself, both in relation to parenting and property, the mother has every incentive to return to Australia to conduct those proceedings.  This will in all likelihood course include bringing the children to Australia for the purposes of participation in the Child Responsive Program and for the preparation of any Family Report or Expert Report to assist in the proceedings.

6. In these circumstances in my view it would be neither just nor convenient to make the injunction sought by the father. 

7. While the father made no particular submissions concerning the second order he seeks (that the children be returned to Australia), I understood that he sought this order for the same purpose, that is to assist him in some way in taking proceedings under the Hague Convention. 

8. The order sought contains no mechanism for return of the children and the obligations of each of the parties under that order are not specified.  Also, as previously noted the mother has commenced the very proceedings that I understand he father wishes to be heard in Australia, that is, parenting proceedings with respect to the children.  These proceedings may be initiated even though the children are not present in Australia. 

9. I am not satisfied that it is just or convenient to make the orders sought and accordingly I dismiss the father’ application.

10. As noted the mother has sought orders with respect to parenting and property.  So far as parenting is concerned, I have also made orders for participation in the Child Responsive Program.  I have similarly made orders for the progression of the property proceedings.

I certify that the preceding twenty four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 17 February 2016.

Legal Associate: 

Date:  17 February 2016