Michaels and Carey
[2009] FMCAfam 577
•12 June 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MICHAELS & CAREY | [2009] FMCAfam 577 |
| FAMILY LAW – Discharge of injunction – meaning of ‘pending further order’ – use of an injunction as an ‘insurance’ – failure to comply with previous orders. |
| Family Law Act 1975, ss.66C, 68 & 114 |
| MJ & JBD (2005) 32 Fam LR 617 Millar & Millar (1983) FLC 91-326 Thomas A Edison Ltd v Bullock (1912) 15 CLR 679 Waugh & Waugh [2000] FamCA 1183 |
| Applicant: | MR MICHAELS |
| Respondent: | MS CAREY |
| File Number: | SYC 6294 of 2007 |
| Judgment of: | Kemp FM |
| Hearing date: | 1 June 2009 |
| Date of Last Submission: | 1 June 2009 |
| Delivered at: | Sydney |
| Delivered on: | 12 June 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr Battley |
| Solicitors for the Applicant: | Shad Partners |
| Counsel for the Respondent: | Mr Dura |
| Solicitors for the Respondent: | Cameron Gillingham & Boyd |
ORDERS
That orders 2, 3, 4, and 5 made on 8 May 2009 be discharged, upon the father’s compliance with order 4 below.
That the father’s passport be returned, upon the father’s compliance with order 4 below.
That orders 6, 7 and 8 made on 19 September 2007 be discharged, upon the father’s compliance with Order 4 below.
That the father within 24 hours provide a written undertaking to the Court that he will prosecute his parenting proceedings before this Court (“without prejudice” to his right to argue that the determination of the Legal Court of El Minieh Sheik Tarek El Kheir in its decision of
28 February 2008 has ousted this Court’s jurisdiction as to parenting matters) and that he will cause the children, [X] [born in 2003] and [Y] [born in 2005] to travel to Australia within 28 days of today’s date (or such further time as he applies to the Court and the Court grants) for the purposes of the preparation of a family report pursuant to Order 5 below, with the costs of such travel to be met by agreement between the parties or failing agreement pursuant to further order.
That pursuant to section 62G(2) of the Family Law Act 1975, the parties and the children of the relationship attend upon a Family Consultant nominated by the Dispute Resolution Co-ordinator of this Court on a date and at times to be advised for the purposes of the preparation of a Family Report addressing the issues identified in s.60CC of the Act. The father to notify my Associate of the dates when the children will be physically in Australia.
That the parties send copies of all of their court documents to the Family Consultant within 3 days of being requested to do so by the Family Consultant.
That for the purpose of completing a Family Report, the Family Consultant is granted leave to inspect the court file and all documents produced on subpoena (once leave to inspect has been granted to at least one other party in the matter).
I DIRECT that the legal representatives for the parties confirm with the Family Consultant no later than 3 days prior to the scheduled interviews that the interviews will proceed on the dates allocated.
That the children, when attending in Australia pursuant to order 5 above, will spend time with the mother as agreed between the parties.
That the proceedings be listed for determination of the threshold issue as to whether the decision of the Legal Court of El Minieh Sheik Tarek El Kheir in its decision of 28 February 2008 is binding on the parties and whether this Court should decline to exercise its jurisdiction as to parenting matters.
That the parties have leave to apply on three days written notice to seek such further or other orders and/or directions as are necessary to implement these orders.
That the matter be listed for mention 3 August 2009 at 9.30am.
The parties’ costs of the father’s application in a case are reserved.
IT IS NOTED that publication of this judgment under the pseudonym Michaels & Carey is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 6294 of 2007
| MR MICHAELS |
Applicant
And
| MS CAREY |
Respondent
REASONS FOR JUDGMENT
Background
By application in a case filed on 18 May 2009, the father seeks certain interim orders as follows:
a)That orders 2, 3, 4 & 5 of the Orders of the Court made on 8 May 2009 (“the subject orders”) be discharged.
b)That the father’s passport be returned.
c)That pending further order, the children of the marriage, namely [X] (born [in] 2003) (“[X]”) and [Y] (born [in] 2005) (“[Y]”) (“the children”), live in Lebanon.
d)That the matter be listed for final hearing.
e)That the mother pay the costs of the proceedings.
The mother filed her response to the father’s application on 27 May 2009, seeking the following orders:
a)That the subject orders be continued.
b)That Order 6 of the Orders of the Court made on 19 September 2007 be continued and the father do all things to return the children to Australia within 7 days of the date hereof.
c)The father pay the costs of these proceedings.
The subject orders are as follows:
1. The matter proceed on an ex parte basis today.
2. The Commissioner of the Australian Federal Police and the Secretary of the Department of Immigration and Citizenship take all necessary steps to immediately place the names of the father and the children on the Airport Watch List, also known as the PACE Alert System at all points of arrival and departure in the Commonwealth of Australia.
3. The father be and is hereby restrained from leaving Australia by any means until the final determination of these proceedings.
4. The Australian Federal Police maintain an airport watch of the father and the children on all flights leaving and arriving at any international airport in all states and territories of the Commonwealth of Australia and immediately notify the mother’s Solicitors Messrs Cameron Gillingham Boyd of any such movement.
5. The father shall deliver to this Court forthwith passports in the name of the father and in the name of either child and thereafter be restrained from applying for a passport for himself and for either of the children, either in the name of either of the children or in the name of the father and either of the children or in any other name.
6. The father be restrained from removing or taking the children out of Australia or from causing any other person to do so.
7. A sealed copy of this Order be served on the father at his last known address, and the contents of it be orally communicated by the mother’s solicitor to the solicitors for the father as soon as reasonably practicable. A further copy of the Order should be faxed to the solicitors acting for the father by 12pm tonight.
At the conclusion of making the subject orders, the Court noted that:
The matter is listed for hearing on Monday 11 May 2009 and the father can seek to vary, suspend, or discharge this Order on that date.
The subject orders were made ex-parte on 8 May 2009, in a hearing which commenced at 6.30pm on Friday, the last business day before the commencement of the hearing between the parties listed for
11 May 2009.
The ex-parte orders were made on the oral application of the mother, pursuant to an Application in a Case dated 8 May 2009, but which was not filed until 11 May 2009. In support of the Application in a Case, the mother relied on the affidavit of her solicitor, which annexed the Orders of the Court of 19 September 2007, deposed to the mother having had no contact with the children since the date of those Orders and annexed correspondence between the parties’ solicitors which indicated that they were having a settlement conference and that the Counsel for the father had formed the view that the matter was not ready to proceed to hearing on 11 May 2009 but that, in any event, the father would appear in Court on 11 May 2009 at 10am. Certain documents were tendered in support of the mother’s Application in a Case, to the effect that the father may have arrived in Australia without alerting the authorities, notwithstanding the existence of an airport watchlist order, and that the mother did not currently know the whereabouts of the children and expressed concern regarding their welfare.
The Court was aware that the proceedings had been listed for hearing as to the property matters in dispute. The status of the parenting proceedings was less clear.
A Conciliation Conference had been conducted between the parties before a Registrar on 11 July 2008 and the matter had been adjourned for directions on 29 August 2008. On that occasion, the matter was listed for final hearing on 11 & 12 May 2009, on the basis that property matters only were to be determined. The Court noted, however, that parenting issues may also be the subject of ventilation, but that the father was of the view that parenting issues had been withdrawn. If that was not the case, the Court gave the parties liberty to apply on
7 days notice in respect of the parenting issues.
On 9 January 2009, an order was made in Chambers listing the matter for a call-over on 12 February 2009, to confirm that the matter was otherwise ready for hearing on 11 May 2009.
On the call-over, further directions were made for the mother to file and serve any further amended application within 7 days, with the father to file and serve any response, valuations to be obtained 28 days prior to the hearing and the time for the filing of affidavits extended to 27 March 2009. The Court again noted that if parenting matters were to be ventilated, a family report would need to be ordered urgently.
On 2 April 2009, the mother filed a further amended initiating application which sought parenting and property orders. The parenting orders were relevantly that the interim orders of 19 September 2007 be made final orders, that the children reside with the mother and that the children have supervised time with the father each weekend or as agreed between the parties with other consequential orders.
The orders of 19 September 2007 included declarations, orders, and notations to the following effect:
THE COURT DECLARES THAT:
(1) Given the urgency of the matters, under s 60(9) of the Family Law Act 1975, the matter may proceed today, without the filing of a s 60I certificate.
THE COURT ORDERS THAT:
(2) Leave be granted to proceed ex parte today.
(3) The mother serve the application, filed 6 September 2007, and all supporting affidavits and a sealed copy of these orders on the father in Lebanon.
(4) The matter be adjourned to 19 November 2007 at 9.30am for mention before me.
THE COURT ORDERS PENDING FURTHER OTHER THAT:
(5) The father and mother have equal shared parental responsibility for the children.
(6) The father do all acts and things to return the children to Australia.
(7) The Commissioner of the Australian Federal Police and the Secretary of the Department of Immigration and Citizenship take all necessary steps to immediately place the names of the father and the children on the airport watch list, also known as the PACE Alert system, at all points of arrival and departure in the Commonwealth of Australia.
(8) The Australian Federal Police maintain an airport watch of the respondent and the children on all flights leaving and arriving at any international airport in all states and territories of the Commonwealth of Australia.
THE COURT NOTES THAT:
(9) This matter came before the registrar for urgent ex parte relief. That application was not granted, and an application in the case for review of that decision was filed on 10 September 2007 and has been made returnable before me today. The mother will not press for the hearing of that application.
The mother’s initiating application, filed on 6 September 2007, sought various parenting orders, which included an interim order to the effect that the children live with the mother and that she was to have sole parental responsibility, notwithstanding Mr Battley’s submission that the mother did not seek such an interim order.
When the matter came before the court on 11 May 2009, Ms DeVere of Counsel appeared for the mother and Mr Battley of Counsel appeared for the father. Shortly after commencement, Ms DeVere was granted leave to withdraw from the proceedings and Ms Sherlock, her instructing solicitor, continued to represent the mother. The agreed position was that the property proceedings could not be heard as the parties had both failed to obtain valuation evidence. Mr Battley handed the first respondent’s passport to the Court and confirmed that the children were not in Australia but in fact resided in Lebanon. The parties entered into consent orders which provided for an attendance before a Family Consultant on 15 May 2009 for the purposes of the preparation of a short report concerning the children. Further, joint single experts were to be appointed first, to value real estate and secondly, to advise the Court as to whether certain orders (“the Lebanese Orders”) made by the Legal Court of El Minieh Sheik Tarek El Kheir (“the Lebanese Court”) are binding on the parties.
Further orders were also made for updated affidavits and the matter was adjourned to 18 June 2009 for further mention. The Court noted that the parties were hopeful of resolving the matter at mediation to be held before Mr Broun QC. The Court also noted that the father may seek on 18 May 2009 to discharge or vary the subject orders made ex-parte on 8 May 2009.
On 18 May 2009, further orders were made concerning the filing of affidavits and the issue as to whether the injunctive order restraining the father from leaving Australia should be discharged only was listed for determination on 1 June 2009.
On 1 June 2009, Mr Battley of Counsel appeared for the father and
Mr Dura of Counsel appeared for the mother. The matter proceeded on the affidavit material and submissions only without any cross-examination of the parties or witnesses. Mr Dura acknowledged that he bore the onus of proof.
The father relied on his affidavit affirmed 17 May 2009 and his financial statement filed 24 April 2009. He also provided an affidavit of the second respondent affirmed 28 May 2009 which was to be read, if the Court sought to impose any financial conditions on the father and after the father had been given the opportunity of providing further submissions.
The mother relied on her affidavit sworn 25 May 2009 (supported by the affidavit of an interpreter sworn 1 June 2009 as noted by the Court) and the affidavit of Mr K sworn 25 May 2009 (“the mother’s uncle”).
Mr Battley raised a number of objections to the affidavits of the mother and the mother’s uncle, largely on the basis of relevance, conclusion, no foundation or submission. The Court will deal with any of these objections, only where necessary in its findings below.
The following is a chronology of relevant events:
a)The husband was born in Lebanon [in] 1966.
b)The husband migrated to Australia with his family in 1972.
c)The wife was born in Lebanon [in] 1984.
d)On 25 July 1999, the father and his brother, (the second respondent), purchased the property at Property C, (“the Property C property”), as tenants in common in equal shares.
e)The father and mother married [in] 2002.
f)
The father and mother lived in Lebanon in the home of the father’s brother, (who is married to the mother’s sister), from
15 June 2002 to about 24 August 2002. The mother lived with the father’s brothers’ family from 15 June 2002 until 3 April 2004.
g)The father returned to Australia alone on 24 August 2002. According to the mother, the father said that he was earning money to prepare for the family’s eventual arrival in Australia.
h)The child of the father and the mother, [X], was born in Lebanon [in] 2003.
i)The father returned to Lebanon in June 2003, for a period of 6 weeks.
j)The father again returned to Australia in July/August 2003.
k)The mother arrived in Australia on 3 April 2004 with [X], accompanied by her father-in-law.
l)The father and mother lived in Australia in the Property C property from 3 April 2004 to January 2006, together with the father’s brother, the second respondent, the second respondent’s wife (the mother’s sister), their two children, two single brothers and the father’s father and niece and subsequently the father’s mother and nephew.
m)A mortgage to Suncorp was entered into on 23 August 2004, in relation to the Property C property.
n)The child of the father and mother, [Y], was born in Australia [in] 2005.
o)Following [Y]’s birth, the father and mother, [X], the father’s parents and 2 brothers moved to live in a home at [W] owned by the father’s parents.
p)The mother alleges that the father informed her that the family was travelling to Lebanon for a four week holiday on the day of departure for same in January 2006.
q)The parties were still in Lebanon in June 2006, again living with the father’s brothers’ family. The father informed the mother that he did not wish to return to Australia.
r)The father departed for Germany in June 2006.
s)War commenced in Lebanon in July 2006.
t)In July 2006, the father returned to Australia and the mother remained living with the father’s brother’s family in Lebanon.
u)On 5 January 2007, the mother and the two children left the father’s brother’s family home and moved to live at her parents’ home in Lebanon.
v)In February 2007, the mother says that the husband’s brother abducted the child, [X], from her parent’s home.
w)From March 2007 to July 2007, the mother applied for fresh passports for herself and attempted to obtain passports for the children (she asserts the father retained the originals). The mother says that she was unable to obtain passports for the children without the consent of the father.
x)On 3 August 2007, the mother arrived in Australia, she says for the purpose of conducting negotiations with the father for the return of the children to her.
y)On 6 August 2007, the mother alleges that the child, [Y], was also abducted from her parent’s home by the father’s brother.
z)On 6 September 2007, the mother filed an application for urgent interim and final orders in the Federal Magistrates Court, so as to facilitate the return to Australia of the children. The application for short notice listing was refused by a Registrar and the matter was listed on 2 November 2007.
aa)On 10 September 2007, the mother filed an application for review of the Registrar’s decision and for urgent orders.
bb)On 15/16 September 2007, the father left Australia for Lebanon.
cc)On 19 September 2007, ex-parte orders were made by the Federal Magistrates Court as set out in paragraph 12 above.
dd)On 5 October 2007, the father filed a Plea for Divorce in the Sunnite Islamic Court in Lebanon, being the Lebanese Court.
ee)On 26 February 2008, a divorce and orders were granted to the father, being the Lebanese orders in the Lebanese Court.
ff)On 30 April 2009, the father arrived in Australia without the children.
gg)On 8 May 2009, the mother obtained the subject orders on an ex parte basis, inter alia, restraining the father from leaving Australia.
hh)On 3 June 2009, the children commenced holidays from their school in Lebanon for a period of 4 months.
When the Court granted the subject orders, it did so on the basis that it was concerned to gain some appreciation and understanding as to the current welfare of the children. On 11 May 2009, when the matter came back before the Court, the Court directed the parties attend a Child Dispute Conference so that that issue could be investigated.
Ms G, Family Consultant, subsequently prepared a short report arising from the Child Dispute Conference which was reportable pursuant to s.11F of the Family Law Act 1975 (“the Act”).
Ms G’s report confirmed that the children were currently living in Northern Lebanon, in the care of their paternal grandmother. Ms G reports that from the parent’s descriptions, the paternal grandmother appeared to be a consistent person in the children’s lives and if she is in fact caring for them, they are at least with someone who is known and familiar to them. The mother’s family in Lebanon appear to have some contact with the children through their school and the mother has recently spoken to [Y] by telephone.
To a large extent, the restraint of the father in Australia until this report could be conducted with his involvement was of critical significance to the Court in assessing the need to protect the children and to ensure, as best it could, their welfare and safety. That being done, the Court must consider whether the injunction against the father from travelling outside Australia should remain under s.68B of the Act and/or whether its discharge should be made conditional under s.68B(3).
The mother says that the father refuses to allow her to contact or spend time with the children. The father’s position is that he disputes that and says that the mother can have time with the children, but she has failed to exercise it.
The father does not wish to return to Australia and the mother does not wish to return to Lebanon.
The mother says that if she is not successful in these proceedings, she will return to Lebanon to seek orders there.
The father said that he was agreeable to the children travelling to Australia to spend holiday time with the mother.
Ms G reports that there are disputed family violence proceedings between the parties and the mother is concerned that the children are at risk residing in a dangerous area the subject of fighting.
Ms G’s recommendation was to the effect that a Family Report was required to provide an assessment of the children, after observing them and their parents. The paternal grandmother would also need to be involved. Practically and financially, she states, it seems that the only way this could occur would be for the paternal grandmother and the children to return to Australia to allow for the preparation of such a report.
Dealing with the issue of jurisdiction, the children are in Lebanon. Both parties are within the Commonwealth of Australia at the time of determining this application. The father’s fortuitous presence within the jurisdiction providing the jurisdictional basis for the mother’s claim. The mother intends to continue to reside in Australia and the father wishes to return to Lebanon. Both, it would appear, are Australian citizens. The father has consented to this Court exercising jurisdiction and has sought his own proposed parenting orders.
Mr Battley confirmed that while he consents to that jurisdiction, it is on the basis that he reserves the right to argue that the Lebanese Orders are either res judicata of the parenting issues before this Court and give rise to an estoppel argument, or that this Court would either enforce those orders, or otherwise not interfere with them.
Mr Battley further confirmed that his client would consent to an order requiring the children to attend Australia for the purposes of the provision of an expert report and at that time, to also spend time with the mother, provided details of the specific payment for such travel could either be agreed or the subject of further order. Mr Dura submitted that the mother had proposed to the Court that if the father was unable or unwilling to have the children returned to Australia that those supporting her would travel to Lebanon and bring the children back to Australia. The Court notes that this would relevantly involve the expenditure of monies which could, otherwise, be put towards assisting the father in arranging for the children to travel, in any event.
Dealing with the mother’s proposal, the Court sees some inherent difficulties in its execution. The Court’s orders, if made, would not be automatically enforced in Lebanon. Further, the Lebanese orders may be inconsistent with any such orders of this Court. The children are residing with the paternal grandmother. It is unlikely that the paternal grandmother would authorise the release of the children to unknown persons who may be assisting the mother. The children are in school and whilst there may be school holidays in Lebanon in June 2009 there is no specific evidence before the Court as to whether travel at this time is, otherwise, in their best interests. The Court is therefore of the view that it would not, at this stage, make an order to the effect that the mother be entitled to remove the children from Lebanon for their return to Australia.
In those circumstances, the issue becomes one as to whether the father should be further restrained from returning to Lebanon. The restraint has to now be examined in light of the parties both agreeing to conduct the parenting proceedings before this Court. In light of that, and the fact that any hearing date will now be many months away, the Court is of the view that the father should not be restrained from returning to Lebanon. Of particular concern to the Court is the father’s evidence that he is employed in Lebanon and his continued employment there is necessary to fund the children’s living expenses and requirements. Further, the children do not currently have either parent with them and the father wishes to return to them to continue with their support. There is no evidence that the father’s parents can meet the financial and practical burdens currently falling on them of supporting the children, without the father’s income and assistance. The Court notes the obligations on a parent pursuant to s.66C of the Act being the imposition of a primary duty to maintain a child. There is no evidence before the Court that the mother is in a position to provide such financial assistance or, indeed, has provided it. Whilst the evidence is not clear as to the father’s relationship with the children, it would appear that he has been a part of their household at least since the mother departed Lebanon and returned to Australia in August 2007.
The mother says that restraining the father is her best “insurance” to see the children. The Court does not see that as the objective of the restraint or as a realistic or likely outcome of the restraint. Restraining the father would not, on its face, guarantee the return of the children. In any event, the Court is not satisfied that it can, at this stage, determine whether the children should, in fact, be returned to Australia to live there as being in their best interests. The Court notes the mother’s concerns and fears regarding civil unrest in Lebanon with elections due on 9 June 2009 and previous wars in 2006 and 2007. The Court is of the view, however, that the children should at least attend in Australia for the purposes of the preparation of a report which would then assist the Court in making any such ultimate determination.
Mr Battley conceding that to have such a report prepared would be in their best interests.
As Mr Battley submits and the Court accepts the use of the injunctive remedy as “insurance” is not an appropriate use of that power.
It was not disputed that the Court had the relevant jurisdiction to make the injunctive order it did. The Court’s injunctive power is relevantly set out in sections 68B and 114 of the Act.
Section 68B of the Act states:
Injunctions
(1) If proceedings are instituted in a court having jurisdiction under this Part for an injunction in relation to a child, the court may make such order or grant such injunction as it considers appropriate for the welfare of the child, including:
(a) an injunction for the personal protection of the child; or
(b) an injunction for the personal protection of:
(i)a parent of the child; or
(ii)a person with whom the child is to live under a parenting order; or
(iii)a person with whom the child is to spend time under a parenting order; or
(iv) a person with whom the child is to communicate under a parenting order; or
(v) a person who has parental responsibility for the child; or
(c)an injunction restraining a person from entering or remaining in:
(i) a place of residence, employment or education of the child; or
(ii)a specified area that contains a place of a kind referred to in subparagraph (i); or
(d)an injunction restraining a person from entering or remaining in:
(i)a place of residence, employment or education of a person referred to in paragraph (b); or
(ii) a specified area that contains a place of a kind referred to in subparagraph (i).
(2)A court exercising jurisdiction under this Act (other than in proceedings to which subsection (1) applies) may grant an injunction in relation to a child, by interlocutory order or otherwise, in any case in which it appears to the court to be just or convenient to do so.
(3)An injunction under this section may be granted unconditionally or on such terms and conditions as the court considers appropriate
Section 114 of the Act states:
Injunctions
(1)In proceedings of the kind referred to in paragraph (e) of the definition of matrimonial cause in subsection 4(1), the court may make such order or grant such injunction as it considers proper with respect to the matter to which the proceedings relate, including:
(a)an injunction for the personal protection of a party to the marriage;
(b)an injunction restraining a party to the marriage from entering or remaining in the matrimonial home or the premises in which the other party to the marriage resides, or restraining a party to the marriage from entering or remaining in a specified area, being an area in which the matrimonial home is, or the premises in which the other party to the marriage resides are, situated;
(c)an injunction restraining a party to the marriage from entering the place of work of the other party to the marriage;
(d)an injunction for the protection of the marital relationship;
(e)an injunction in relation to the property of a party to the marriage; or
(f)an injunction relating to the use or occupancy of the matrimonial home.
(2)In exercising its powers under subsection (1), the court may make an order relieving a party to a marriage from any obligation to perform marital services or render conjugal rights.
(2A)In a de facto financial cause (other than proceedings referred to in, or relating to, paragraph (e) or (f) of the definition of de facto financial cause in subsection 4(1)) the court may:
(a)make such order or grant such injunction as it considers proper with respect to the use or occupancy of a specified residence of the parties to the de facto relationship or either of them; and
(b)if it makes an order or grants an injunction under paragraph (a)--make such order or grant such injunction as it considers proper with respect to restraining a party to the de facto relationship from entering or remaining in:
(i) that residence; or
(ii) a specified area in which that residence is situated; and
(c)make such order or grant such injunction as it considers proper with respect to the property of the parties to the de facto relationship or either of them.
Sections 90SB and 90SK apply in relation to an order or injunction under this subsection in a corresponding way to the way in which those sections apply in relation to an order under section 90SM.
Note 1: This subsection does not apply to proceedings referred to in paragraph (g) of the definition of de facto financial cause that relate to proceedings referred to in paragraph (e) or (f) of that definition.
Note 2: The same requirements in sections 90SB (length of relationship etc.) and 90SK (geographical requirements) for section 90SM orders must be satisfied for orders and injunctions under this subsection.
(3)A court exercising jurisdiction under this Act in proceedings other than proceedings to which subsection (1) applies may grant an injunction, by interlocutory order or otherwise (including an injunction in aid of the enforcement of a decree), in any case in which it appears to the court to be just or convenient to do so and either unconditionally or upon such terms and conditions as the court considers appropriate.
(4)If a party to a marriage is a bankrupt, a court may, on the application of the other party to the marriage, by interlocutory order, grant an injunction under subsection (3) restraining the bankruptcy trustee from declaring and distributing dividends amongst the bankrupt's creditors.
(5)Subsection (4) does not limit subsection (3).
(6)If a party to a marriage is a debtor subject to a personal insolvency agreement, a court may, on the application of the other party to the marriage, by interlocutory order, grant an injunction under subsection (3) restraining the trustee of the agreement from disposing of (whether by sale, gift or otherwise) property subject to the agreement.
(7)Subsection (6) does not limit subsection (3).
The Court is of the view that the heads of power referred to in the above mentioned sections are inclusive only and that the Court has jurisdiction to make such injunctive orders as it considers appropriate for the welfare of the children or where in relation to children it appears to be just or convenient to do so under s.68B. The Court accepts there are current property proceedings on foot to ground some of the heads referred to in s.114(1). Nevertheless, under s.114(3), a Court may grant an interlocutory injunction in any case other than proceedings to which subsection (1) applies, in which it appears to the Court, to be just or convenient to do so.
Mr Battley attacks the continuation of the injunctive order on, essentially, two bases. First, he submits that there was a material non-disclosure at the time the order was made ex-parte and that the order should be discharged ab initio. Secondly, he argues that the order should be discharged on the basis that the restraint imposed was not necessary to prevent abuse or frustration of the Court’s process in relation to the matters within its jurisdiction, in accordance with the principles set out in the Full Court of the Family Court of Australia’s decision in Waugh & Waugh [2000] FamCA 1183.
Mr Battley submits that it cannot be an abuse or frustration of the Court’s process for a party simply to live in a country which is not a member of the Hague convention. There is some force in that submission.
Further, the Court has not been asked to determine whether the father breached the Court’s orders, as a factual basis for the Court to find or infer that it is likely, that the father will abuse or frustrate the Court’s processes.
There is no evidence before the Court that the father intends to abuse or frustrate the Court’s process. The Court accepts Mr Battley’s submission that the suspicion of the mother’s legal representatives that as the father and the second respondents are twins, that the father may have used his twin brother’s passport to enter Australia so as not to activate the airport Watchlist, is simply that, namely a suspicion. There has been no evidentiary foundation for this and the Court gives it no weight.
As Justice Coleman said in MJ & JBD (2005) 32 Fam LR 617:
“It is not simply a matter of whether, on balance, an injunction should be granted to restrain, in this case, a person exercising a lawful right to leave the Commonwealth. Justice requires that there be consideration of the necessity for an injunction to be granted in order to restrain conduct…”
As His Honour remarked that the power to grant the injunction sought by the mother in that case, namely, to restrain the father from leaving the Commonwealth of Australia and orders consequential to such an order was found in s.114(3) of the Act, he, nevertheless, was of the view that as the relevant portions of s.114(3) of the Act were identical to that in s.68B(2), little turned on that point.
The mother says that if the father is allowed to return to Lebanon, it is likely that he will not comply with any orders of the Court concerning either the parenting or the property matter. Mr Battley submits that the Court would not be so satisfied as the father attended at the hearing listed on 11 May 2009 and whilst he had not complied with the Court’s order of 19 September 2007 (that is for the father to return the children to Australia, Mr Battley conceding that the father was aware or should have been aware of this order at least as and from 19 November 2007) there has been no finding that he has breached that order and no contravention proceedings bought by the mother against him in which such a finding could be made.
The factual matrix of this case may give some explanation to the father’s conduct in that he returned to Lebanon on 15 or 16 September 2007, there were proceedings conducted in Lebanon, and the Court noted in its orders of 19 November 2007 that these proceedings in Lebanon were to be held on 15 January 2008. On 15 February 2008, the Court further noted that those proceedings had been adjourned from 15 January 2008 to 15 April 2008. That notation seems to be inconsistent with the copy of the orders of the Lebanese Court which are dated 26 February 2008. Further, annexure M to the mother’s affidavit sworn 25 May 2009 is a letter from the mother’s solicitors, Biddulph & Salenger, to the father’s then solicitors, Kheir & Associates, which relevantly states that the mother’s solicitor had advised this Court that her client’s instructions were that only the property matter would proceed, at this stage. The mother indicating that she would not be pressing for any further orders other than that the orders made on 19 September 2007 continue. The mother’s solicitors state “In the absence of any other proposals for my client’s contact with the children, it is her only insurance that should the children come to Australia that she will see them”. This is not, on its face, inconsistent with the notations made in the Lebanese Orders that the mother “abandons” the children to the benefit of the father, accepting that the children may travel with the father outside Lebanon and especially to Australia.
The mother’s position with respect to the Lebanese Orders was that she had appointed her elderly father pursuant to a Power of Attorney to act on her behalf in divorce proceedings, she says, “only”. Nevertheless, the mother acknowledged that in Lebanon “child custody and divorce decisions are based on local religious laws”. The mother alleges that her father was pressured into agreeing to matters outside the terms of his authority to act for her. This appears to be disputed by the father. There is no evidence before the Court from the mother’s father and
Mr Battley submits that the Court should infer that his evidence would not, otherwise, assist the mother. The mother has filed in support the affidavit of the mother’s uncle, Mr K, sworn 25 May 2009, who deposes to conversations with the mother’s father. It would appear that the mother’s uncle had been providing financial assistance to the mother’s family in Lebanon to assist the mother with the conduct of the proceedings in Lebanon. The mother’s uncle deposes to conversations with the mother’s father concerning his attendance at the Lebanese Court. The mother’s father refers to conversations with Lebanese Court officers wherein, he understood, that by signing certain documents there would be no effect on the mother’s proceedings in Australia.
While the Court has been provided with a translation of the Lebanese Orders, there is no specific evidence before this Court as to their meaning and effect. The parties had agreed to obtain some expert evidence referrable to that, but that is not before the Court at this time. As said, Mr Battley has reserved his client’s right to argue that the Lebanese Orders are determinative of these proceedings.
The background of the Lebanese Orders may also go some way to explaining why it was that the father did not seek to proceed with an application in a case filed by him on 24 April 2008 (albeit some
7 months after orders were made) and made returnable on 27 June 2008 which sought that the orders made on 19 September 2007 be set aside. Initial answers to questions provided by Mr Battley assumed that the father had not made this application. Indeed, Mr Dura positively submitted that the father did not seek to discharge those orders by way of such an application. While neither Mr Battley nor Mr Dura corrected the Court of this assumption, an examination of the Court record indicates that on 27 June 2008, when the matter came before the Court, there was no appearance for either party and the Court simply noted that its last order, made on 29 April 2009 referred the parties to a Conciliation Conference on 11 July 2008 and it appears the father’s application for discharge was not, thereafter, prosecuted.
Further complicating the factual matrix, the mother filed on 12 October 2007 an amended initiating application which sought property orders but unusually in paragraph 2, sought an order that “The applicant mother be granted leave to amend the initiating application in this court to include the orders sought herein.”. That proposed order did not make sense. However, if it was considered that both parenting and property matters were still alive on 12 October 2007, that was largely cleared up by the mother filing another document, described as an “Amended Initiating Application” on 2 May 2008, which sought property orders, save with handwritten order 10 stating “the orders made on 19 September 2007 remain in force”. This was entirely consistent with the communication from the mother’s solicitor, being annexure M referred to above.
Following the filing of the abovementioned applications, the father filed his own response on 24 April 2009, which sought orders that the parenting orders in the mother’s initiating application filed on
8 September 2008 (which is an incorrect date and must refer, in fact, to the mother’s initiating application filed on 6 September 2007) be dismissed and that the children live with him in Lebanon and spend supervised time with the mother, when she visits Lebanon, and that the father have sole responsibility for the children.
On 20 February 2009, the mother filed a further Amended Initiation Application, this time joining the father’s brother as second respondent and seeking property orders referrable to both the father and his brother and parenting orders to the effect that the orders of 19 September 2007 be made final and that the children live with the mother and that the children spend time with the father each weekend or as agreed between the parties. It should be noted that at this time the children lived with the father in Lebanon. The filing of this document on its face may arguably place the mother in breach of her undertaking given in the Lebanese Court not to require the children after she had abandoned them to the benefit of the father, although this is by no means clear as the Court, as stated, does not have the benefit of any evidence referrable to the meaning and effect of the Lebanese Orders.
On 2 April 2009, the mother filed a further Amended Initiating Application seeking both amended property and amended parenting orders with amendments to both but in particular seeking sole parental responsibility for the children and the father’s time to be supervised.
On 11 May 2009, the second respondent sought an order dismissing the mother’s application as against him, together with costs.
In light of the above, the Court is not prepared to find that the father would not otherwise comply with any orders or directions of this Court. This finding is made, notwithstanding the Court’s view that its orders of 19 September 2007 are still existent and enforceable and have not been complied with.
Mr Battley submitted, novelly, that because the orders of 19 September 2007 were made, pending further order, they continued only until the next Court order. If they were not continued on that date, they would have been automatically discharged. The Court queried Counsel as to whether there was any authority for this proposition. Mr Dura during the course of the day, very helpfully provided the Court with the decision of Millar & Millar (1983) FLC 91-326. In that decision, His Honour Justice Nygh considered the meaning of “Until Further Order”. The Court accepts Mr Battley’s submission that “pending” further order is to be interpreted as “until” further order, it being given its natural meaning. His Honour considered that such an order should be interpreted as meaning an order which operated, pending disposal of the wife’s application, in that case for permanent maintenance and property. His Honour held that an interpretation that required that such an order be read as meaning until the further order becomes effective or is complied with could not be accepted.
The Court is of the view that unless there was a subsequent order discharging, suspending or varying the earlier order, either expressly or by implication, then that earlier order continues in force until disposal of the parties’ parenting application.
The legal effect of the Court’s orders could not be effected by the terms of any subsequent application filed by a party until such application is determined and a subsequent order made which would make the earlier order incapable of continued survival. To give but one example, if the Court made an Airport Watchlist order on the first return date of an application and then on the adjourned date made only procedural orders for the filing of affidavits, it would be a procedural nightmare if it could be said that the Airport Watchlist order expired. The Court’s resources would be extended to breaking point if it was required to consider that orders made “pending further order” could expire in such circumstances. Mr Battley could point to no authority in support of his submission.
Mr Dura submitted that the Court could infer that the father was unlikely to comply with any obligations imposed on him on the basis that he had failed to provide for the children to communicate with the mother whilst in Lebanon, that he failed to travel with the children to Australia at the time of the hearing and further, that he failed to notify the mother and/or her legal representatives, that he was in Australia without the children. The Court does not have sufficient material before it to make any finding as to whether the father has failed or not in any attempts to arrange for the children to communicate with the mother.
The orders of the Lebanese Court note that the mother is able to spend time with the children in Lebanon and that notation appears to arise as a result of an agreement between the parties.
As the matter was listed for hearing on 11 May 2009 on the basis that, from the father’s point of view, property matters only were to be determined and the children it would appear were otherwise in schooling, the Court could not draw an adverse inference in respect of any failure by the father to attend with the children. Similarly, his lack of any notification as to this would not, otherwise, similarly attract an adverse inference.
The Court also notes the mother’s stated position, that whilst she had limited funds, she would seek to agitate matters in the Lebanese Court.
The Lebanese Orders note that the mother can spend time with the children in Lebanon once a week on Sundays from 9am to the sunset prayer. This provision does appear to be of benefit to the mother. Other provisions such as requiring her to pay a penal fine in the order of 10,000,000 Lebanese Pounds to the father in the event she requires the children later, does not appear to be of such benefit. The Court is unable to make any finding as to these matters in light of the lack of any specific evidence before it. The provisions referred to, appear to be in the nature of inter-partes agreements, but the Court document itself does refer to the parties being ordered to execute “the agreement between them”. There is no evidence before the Court of any executed agreement, save the notations referred to in the Lebanese Orders. There has been no application to have these orders registered with this Court or the Family Court of Australia.
The Court is of the view, therefore, that the injunction to restrain the husband should be discharged on the basis he provide a written undertaking to the Court to prosecute the parenting proceedings in Australia and to bring the children to Australia for the purposes of the provision of a Family Report.
If the father was to breach such an undertaking, it would be necessary for the mother to conduct proceedings in Lebanon. The mother’s financial position would not, it would appear, allow that without the financial assistance of relatives. The father’s position in the property proceedings, which are also before the Court, is that he has only one asset in Australia being the Property C property which he asserts is owned nominally by him with the second respondent but which is for all purposes entirely the property of his brother. What that means is, if his property case is to be accepted, he has no funds by which he could secure any undertaking given. As Mr Dura submits, orders of this Court may have an impact on the father’s brother, the second respondent, but on the father’s case, would appear to have no effect on him, personally. This is a matter which Mr Battley submitted he would seek to address the Court on at the time of (or shortly after) its decision.
Dealing with Mr Battley’s further argument that there has been a material non-disclosure, the Court has had regard to the decision of the High Court of Australia in Thomas A Edison Ltd v Bullock (1912) 15 CLR 679 in relation to the obligations to make full and frank disclosure on any ex-parte application. The Court simply notes that it is not a question of whether there has or has not been any deliberate withholding of relevant facts, rather, if there has been a failure to disclose (deliberate or not) then the Court may discharge the injunctive relief granted in circumstances where those relevant facts were not placed before the Court. As Isaacs J. said in Thomas A Edison Ltd v Bullock at page 681-682
“…it is the duty of a party asking for an injunction ex-parte to bring under the notice of the Court all facts material to the determination of his right to that injunction, and it is no excuse for him to say he was not aware of their importance. Uberrrima Fides is required and the party inducing the Court to act in the absence of the other party, fails in his obligation unless he supplies the place of the absent party to the extent of bringing forward all the material facts which that party would presumably have brought forward in his defence to that application. Unless that is done, the implied condition upon which the Court acts in forming its judgment is unfulfilled and the order so obtained must almost invariably fall...”
“In the present instance the admitted circumstances are most material: no order could have been made had they been stated, without considering and weighing them, and therefore the order for injunction was improperly obtained.”
Mr Battley submits that the material non-disclosure was the failure to bring to the Court’s attention a letter from his instructing solicitors addressed to the Court dated 7 May 2009 which confirmed that the father would appear in Court on Monday at 10am. When it was brought to Mr Battley’s attention that that letter formed part of Exhibit D on the application, Mr Battley submitted that it should have been attached as an annexure to an affidavit sworn in support of the mother’s application for ex-parte orders. The Court does not accept this argument as it is of the view that provided the letter and its contents were disclosed to the Court and they were, by being tendered, then that was a sufficient discharge of the applicant’s obligations.
However, the Court was more concerned by the applicant’s failure to bring to its attention the contents of annexure M. This is particularly the case as the two further amendments to the mother’s application, post 2 May 2008, were made on 20 February 2009 and 2 April 2009 after the proceedings had been listed for final hearing on 29 August 2008 referrable to property matters only and the call-over on
12 February 2009 to confirm the matter was ready for hearing, had occurred on a date prior to these more recent amendments. There was no further date before the Court after the call-over and the listed hearing date.
The Court’s concern is further amplified by the tender of Exhibit B being a letter from Cameron Gillingham & Boyd, solicitors for the mother, to the father’s then solicitors, Kheir Solicitors, dated 26 August 2008 which stated “…in relation to the orders of the Sunnite Islamic Court dated 26 February 2008, our client does not accept that these orders have any bearing on the parenting application before the Federal Magistrates Court in Sydney”. At the time that Exhibit B was written, the only application by the mother before the Court was a property application filed on 2 May 2008 which simply sought the parenting orders of 19 September 2007 remain in place. Whilst the father’s responsive parenting application had been filed on 24 April 2008, it appears not to have been progressed in light of annexure M and it was filed prior to the mother filing her essentially property only order application on 2 May 2008. The father having filed no further responses to the mother’s amending applications filed after that date.
If the Court had been informed that the father was, himself, in fact operating on the basis that property proceedings only were before the Court, it is likely that the Court would not have granted the injunctive relief sought. This is particularly the case as Exhibit C on the ex-parte application being a letter from the mother’s solicitors to the father’s then solicitors dated 19 February 2009 sought advice as to whether the father was to file an affidavit in relation to the present circumstances of the children in compliance with orders dated 15 February 2008, prior in time to annexure M (1 May 2008). Further, the Court’s notations had provided that the parties had liberty to apply on seven days notice in respect of any parenting matters. The tender of annexure M would have highlighted this contradiction.
Exhibit D on the mother’s ex-parte application included a letter from her solicitors to the Australian Federal Police dated 4 May 2009 which provided an information sheet which included in Part K certain information and stated “Family law proceedings are listed for final hearing on 11 & 12 May 2009 at which father is required to be present. The children have been retained in Lebanon since 2007 by the father and/or members of the father’s family. The mother has been in Australia since August 2007. She filed her current application for both parenting and property orders in September 2007.” That document appears undated but implies that both parenting and property orders were listed for final hearing on 11 & 12 May 2009. In light of annexure M, and the documents filed by the father, it is likely that he was, nevertheless, of the belief that parenting matters would not be before the Court on those final hearing dates.
The Court is of the view that ex-parte applications impose a heavy obligation on an applicant. The court accepts that the principal ex debito justitiae (being a debt of justice) requires a full and frank disclosure to deal with the inherent injustice of an ex-parte application. The Court is of the view that it should have been informed of the existence of annexure M as that would have provided to the Court an understanding of the father’s position as to what he understood was to be argued before the Court on the final hearing.
Mr Battley says that the “debt to justice” can only be repaid by the removal of the injunctive order. The Court agrees but this does not mean that the Court should not impose conditions on its removal. It is a debt to the Court and the Court can impose its own “repayment” terms. This the Court accepts as being so because, if there had been a non-disclosure, the corollary is that the injunction should be discharged, but as Mr Battley concedes, there may be a fresh application and as he, sensibly confirmed the Court would be at liberty to regard these proceedings before it as a fresh application.
The Court is of the view that in the circumstances of this matter, it will discharge orders 6, 7 and 8 of 19 September 2007 requiring that the father return the children to Australia, conditional upon the father providing a written undertaking to the Court as set out below. The Court considers that it would be inappropriate and not in the best interests of the children for that order to remain given the elapse of time since it was made and given that the children have remained in Lebanon for some 3 years and 8 months. Similarly, the airport Watchlist orders for the children should be discharged. The Court will not make any order at this time that the children live with the father as there is insufficient evidence before it. This is so given Ms G’s report following the Child Dispute Conference.
The Court will discharge orders 2, 3, 4 & 5 made on 8 May 2009 (and return the father’s passport) conditional upon the father providing a written undertaking to the Court that he will prosecute the parenting proceedings before this Court, reserving his right to argue that the Lebanese Orders have ousted this Court’s jurisdiction and that he will cause the children to travel to Australia within a specified period of, say, 28 days (or such other period as the Court orders upon his application for an extension of time) for the purposes of preparing a family report for those parenting proceedings. The Court is of the view that such a condition is appropriate for the welfare of the children.
The Court will order, but not as a condition of any discharge, that the children, when attending in Australia for the purposes of the provision of a family report, spend time with the mother, as agreed between the parties.
The Court is of the view that on the basis that the father’s written undertaking is provided to the Court, there should be no requirement that the children travel to Australia before the discharge of the injunctive order restraining the father from so travelling or that his undertaking need be secured. In light of this, the parties and, in particular Mr Battley, may not need to address this issue further.
The parties have agreed that the Court should set down a date for determination as a threshold matter, the issue as to whether the Lebanese Court’s determination of 28 February 2008 is binding on the parties and whether this Court should as a result decline to exercise its jurisdiction as to parenting matters. The date for this, will to some extent depend on the date when the expert evidence is available as to this.
The Court will make appropriate orders including an order for a Family Report and directions to implement the above. The Court will direct the father notify my associate of the dates the children will be in Australia for the purposes of the Family Report.
The Court will give leave to the parties to apply on 3 days written notice to seek any further or other orders and directions to implement the Court’s decision.
The Court proposes at this stage to reserve the parties costs with respect to this application in a case.
I certify that the preceding eighty-three (83) paragraphs are a true copy of the reasons for judgment of Kemp FM
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