Matahoa and Rihakira

[2009] FamCA 223

FAMILY COURT OF AUSTRALIA

MATAHOA & RIHAKIRA [2009] FamCA 223

FAMILY LAW – CHILDREN – Watch list – Ex parte – Notice to mother

Family Law Act 1975 (Cth)

APPLICANT: Mr Matahoa

RESPONDENT: Ms Rihakira

FILE NUMBER: MLC 1842 of 2009

DATE DELIVERED: 5 March 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 5 March 2009

REPRESENTATION

THE APPLICANT: IN PERSON

Orders

1. That all proceedings be adjourned to 9.45am on 10 March 2009 in the Senior Registrars list.

2. That the orders made on 3 March 2009 are extended until 4.30pm on 10 March 2009.

3. That the father forthwith serve a copy of these orders and the orders of the Honourable Justice Rose made on 3 March 2009 upon the mother care of:

   (a)    Ms D, …, Vic; and

   (b)    Ms G, …, Auckland NZ

4. That service as set out in paragraph 3 of these orders be by Express Post.

5. That the order be expedited forthwith.

6. That my reasons for judgment be transcribed and be placed on the court file.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1842 of 2009

MR MATAHOA

Applicant

And

MS RIHAKIRA

Respondent

REASONS FOR JUDGMENT

1. This is an application in the duty list which has been brought on as a matter of urgency as a result of orders made by Rose J in the after hours service of the court on Tuesday 3 March 2009.  The orders were actually signed by Registrar George on behalf of Rose J, and from a chronology which I have read, it would appear that they were made fairly late at night. 

2. The orders are the usual passport watch and injunctive orders in relation to four children aged from eight years down to only one year old.  The father's position is that the order has not been served on the mother, and he has provided me with a chronology which I have marked as an exhibit today, setting out what he has done since 4 March, which is the day after the orders were made.  He has endeavoured to make contact with a number of people, and at this stage been unsuccessful in touching base with the mother and his children. 

3. I have indicated my concern that none of this is in writing, but having regard to the fact that Rose J was satisfied to make some temporary holding orders, I am not going to go over the same ground again.  However, I have made it very clear that apart from the fact that there are children involved in this case, there are substantial impositions on various government authorities as well as commercial airlines, which have to be taken into account. 

4. Not only is it important that the children be precluded at this stage from leaving Australia until the issue can be sorted out, but the mother must know that these orders exist.  The fact that she has not been able to be contacted gives rise to all sorts of questions about what she is doing.  On that basis alone, it is dangerous for a court to simply rely upon what somebody says not on oath, and without the formal documents being served.

5. What I am prepared to do is to adjourn the matter to the senior registrars' list at 9.45 am on 10 March, at which time, the father can tell the court in some detail about the proper history of the break-up of the relationship and his involvement with the children, as well as why he has been unable to serve anything upon the mother.  At that time, an appropriate application to extend my orders can be made, as well as an application for suspension of the rules so that substituted service can be organised.

6. The father has proffered two names as people who at least could be made aware of these orders.  One is a cousin of the mother, and another is her mother.  The cousin lives not far from where the parties apparently resided, and the father has already been in touch with her, and she denies any knowledge of what has occurred.  That may very well be a ruse to confuse and put off the father, particularly having regard to his understanding that the mother's car was actually nearby.  On the other hand, just bringing the order to the attention of the  mother at this stage may flush her out so that this matter can be properly determined in a civilised way, particularly having regard, as I said, to the fact that there are children involved.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  30 March 2009