Neall and Ramo

[2019] FamCA 968

FAMILY COURT OF AUSTRALIA

NEALL & RAMO [2019] FamCA 968

FAMILY LAW – CHILDREN – Parenting – interim orders securing presence of child in Australia pending final hearing – father resides in USA – child may be wrongfully retained in Australia – no current return application under Convention of 25 October 1980 on the Civil Aspects of International Child Abduction.

Convention of 25 October 1980 on the Civil Aspects of International Child Abduction

APPLICANT: Ms Neall

RESPONDENT: Mr Ramo

FILE NUMBER: MLC 11886 of 2019

DATE DELIVERED: 10 December 2019

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 10 December 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Dellidis

SOLICITOR FOR THE APPLICANT: McKean Park Lawyers

COUNSEL FOR THE RESPONDENT: No Appearance

SOLICITOR FOR THE RESPONDENT:

Orders

1. This matter be listed for mention by telephone on 11 February 2020 at 8.30 am Australian Eastern Summer Time (“the mention”) and a call be placed to the husband’s solicitors on … at the commencement of the mention in order that the respondent may participate in the mention.

IT IS ORDERED UNTIL FURTHER ORDER THAT:

1. The child X born … 2016 (“the child”) live with the wife in Australia.  

IT IS FURTHER ORDERED THAT:

1. The applicant wife Ms Neall and the respondent husband Mr Ramo and their servants and or agents be and are hereby mutually restrained  from removing or attempting to remove or causing or permitting or suffering the removal of the child X, female, born … 2016 from the Commonwealth of Australia.

2. IT IS REQUESTED that the Australian Federal Police give effect to the preceding order by placing the name of the said child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child or children’s name(s) on the Watch List until further order.

3. My reasons for decision this day be transcribed and when settled placed on the Court file and made available to the parties.

4. The wife, through her lawyer, shall forthwith (AEST) serve electronically via email a sealed copy of this Order made today, together with the reasons for decision upon:-

   a)the respondent husband at … and at …; and

   b)the husband’s United States attorney,. at … and at ….

5. All extant interim applications be otherwise dismissed.

6. This matter be fixed for final hearing on 6 March 2020 at 10.00 am estimated to take one day.

7. The applicant wife file and serve any amended Initiating Application and affidavit upon which she seeks to rely by not later than 6 January 2020.

8. The respondent husband file and serve any Response and affidavit upon which he seeks to rely by not later than 6 February 2020.

9. The respondent husband forthwith serve upon the wife, via their respective solicitors, notification as to whether he proposes to make any application for the return of the child X to the United States of America pursuant to the 1980 Hague Convention on the Civil Aspects of International Child Abduction.

10. Pursuant to section 68L(2) of the Family Law Act 1975 the interests of the child X born in 2016 be independently represented by a lawyer AND IT IS REQUESTED that Victoria Legal Aid arrange such representation and the independent children’s lawyer be appointed in sufficient time to be able to make recommendations about what interim parenting orders would be in the best interest of the child by the next return date and in the meantime to endeavour to ascertain whether the father will participate in this proceeding.

11. Forthwith upon appointment by the said Victoria Legal Aid or otherwise the independent children’s lawyer file a Notice of Address for Service.

12. Within 48 hours of notification of such appointment the solicitor’s for the respective parties provide to the independent children’s lawyer copies of all relevant documents relied upon.

AND IT IS NOTED BY THE COURT:

A.That, in the event that a party fails to attend a hearing or defaults in the filing of documents or things required of him/her, the Court may proceed to determine the matter without any input by the non-attending or defaulting party.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 11886  of 2019

Ms Neall

Applicant

And

Mr Ramo

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This matter comes before today in the Duty List on the application of the mother.  The mother filed an Initiating Application on 21 October 2019 seeking parenting orders on a final basis that she and the father have equal shared parental responsibility in relation X, that X live with the mother in Australia and spent time with the father as agreed between the parents.  The mother today is seeking on an interim basis that until further Order, the only child of the marriage X born in 2016, live with mother in Australia and spend time with the father as agreed between the parents, that until further Order, X be placed on the Airport Watch List which prohibits the removal of X from Australia.

2. The father is currently living in State B in the United States of America.  The Court attempted to contact the father for today’s hearing via his solicitor in State B.  However, as it was 6.30pm on Monday 9 December in State B at the time the call was placed, a recorded message advised that the office of the father’s solicitor was now closed for business for the day.  Therefore, there was no appearance by or on behalf of the father.  The father has filed no documents in these proceedings.  There have been many efforts made by the solicitors for the mother to serve and communicate with the father and his solicitors to determine if the father is seeking to respond or defend the application made by the mother. 

3. The background provided by the mother in her affidavit affirmed 21 October 2019, states that the parents were married in 2014 in State B and the parents remain living in State B during their marriage.  The father is employed by Company A as a transport manager.

4. The mother had obtained a Green card and Green Card Visa enabling her to live in the United States of America.  Her Green Card has since expired.  The mother was in the process of renewing her Green Card and Visa when the mother and the child travelled to Country C in June 2018, with the father’s consent.  The child was then 2 years of age.  The maternal grandmother owns a house in City D which was under repair and the mother travelled there to supervise the repairs.  The father visited the mother and child on two occasions in Country C, with the last occasion being on 10 September 2018 being the last time the father had physical contact with the child. 

5. The mother and child remained in Country C until October 2018, when the wife travelled to Australia with X with the father’s consent to visit her unwell father who had suffered injury from an accident.  The mother’s parents live in Town C, Victoria Australia.  The father had asked the mother whilst she was in Country C, to return to State B for Thanksgiving on 22 November 2018 before suggesting that the mother travel to Australia for the December holiday period.  The father sent the mother a text message whilst she was in Australia asking that she return to State B for Thanksgiving.  The mother did not return and communicated to the father that she was reluctant to leave her parents as her mother needed support in caring for her father. 

6. The mother decided to remain in Australia for Christmas 2018 and the New Year.  Her father passed away in January 2019.  The mother then decided to remain in Australia to support the mother after the father had suggested that the mother could have two to three months of “grieving time” in Australia.  The mother says it was “during this period [that she] formed the view that [the] marriage was at an end”.  The mother’s evidence is that by February 2019, “it was clear to me that our marriage was over and that I wanted to stay in Australia and make a home for myself and X in Australia.” 

7. The mother deposes that the father has since expressed to her his intentions to come to Australia to visit X and the maternal uncles who live in Queensland.  The mother has concerns about the father having unsupervised time with X, alleging that he “is a very heavy drinker when he is not at work” and has an “excessive drinking” problem.  The mother had suggested that the father have time with X at one of the maternal uncle’s homes where he could spend time with X and the mother to have “family time together” but the parents could not agree on an arrangement. 

8. The mother deposes that she has ensured that regular FaceTime has taken place between X and the father since being in Australia. 

9. The mother deposes that she is concerned that the father may attempt to abduct X from Australia by using his position as a transport manager. 

10. The mother engaged a solicitor in State B and issued proceedings by filing a Petition for Dissolution of Marriage on 22 March 2019 seeking a divorce, spousal maintenance and financial orders.  On 6 June 2019 the father filed a Counter Petition for the dissolution of the marriage and specifically sought for the Court in State B to deal with the issue of parental responsibility.  On 14 October 2019 the wife filed a Motion for Leave to Amend Supplemental Petition for Dissolution of Marriage and Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) Affidavit to essentially bifurcate the parenting issues as she claimed that the jurisdiction lies in Australia where she and the child have resided since October 2018. 

11. On 14 October 2019 the mother filed her Initiating Application in this Registry of the Family Court of Australia.  The mother attempted to serve the Initiating Application and supporting affidavit on the father’s solicitor, Mr G, of F Company, by way of email to the solicitor’s email address on 15 November 2019 at 4.14pm, as evidenced by the Affidavit of Service filed by the mother’s solicitor’s legal assistant Ms Sargent on 20 November 2019.  The mother attempted to serve the Initiating Application and supporting affidavit on the father by way of email to two separate email addresses of the father on 21 November 2019 at 11.28am (Australian Eastern Standard Time (“AEST”)) being 7.28pm on 20 November 2019 in State B, as evidenced by the Affidavit of Service filed by the Ms Sargent on 21 November 2019. 

12. In Ms Sargent’s affidavit affirmed 26 November 2019, she deposes that the father sent numerous emails in reply to the single email from Ms Sargent serving the father with the mother’s Initiating Application filed 21 October 2019, Affidavit of Non-Filing Family Dispute Resolution Certificate, affidavit of Ms Neall sworn and filed 21 October 2019 and the Marriage, Families and Separation brochure.  Ms Sargent, Ms Bristow nor any other solicitor at McKean Park Lawyers replied to the father’s emails.  The emails are marked as annexures “A”-“G” and are attached to Ms Sargent’s affidavit.  At 1.12pm AEST on 21 November 2019, being less than two hours after service, the father replied to Ms Bristow who had been copied into the service email.  The father copies in his solicitor Mr G and writes:

    “Thank you for this information and informing me and the courts that actually have jurisdiction ([K County State B] USA) over this case and matters in the 11^th Courts of [K County State B] USA.  Your miracle claim and last minute filings have been put forward to my lawyer, courts and judge that have jurisdiction over this matter and are looking over your paperwork, dates, filing to coordinate with [Ms L] claims.  After Friday’s court date I will be happy to speak with you under consoles supervision in Australia to cover your false dates, affidavit and documents with all parties and after the USAs ruling, jurisdiction over an American child citizen that was removed to your country under false & malicious pretense without consent of the father we’ll chat!!! So sit back love if [Ms Neall] only gave you half of the story your [sic] in for a long ride on how she manipulated two courts, continents and families.”

13. Between 1.29pm and 1.34pm AEST on 21 November, the father sent a further four emails to Ms Bristow attaching various links to the Australian Passports Office, Attorney General’s Department and the US Embassy & Consulates in Australia.  These links were to webpages titled “Passport fraud”, “Confirming your Australian citizenship” and “International parental child abduction”.

14. At 1.46pm AEST on 21 November, the father sent another email copying in his solicitor Mr G and writes:

    Me and my attorney look forward to any and all contact, information or proceedings after Friday’s hearing that pertain to [State B] 11^th Court of [K County].  Thank you for your time please contact my lawyer direct with anything else that pertains to this case in its jurisdiction of [K County State B] USA.  It’s odd you’re directly contacting a respondent, petitioner in your false case in Australia courts???? Pretty sure that’s not proper mate but I’m okay to play the game so feel free to contact me

15. At 2.50pm AEST on 21 November, the father sent another email to Ms Bristow.  He writes, without copying in his solicitor:

    I’ll also not sign nor accept receive of [sic] your documents as nor open read them as you hold no jurisdiction over a USA minor citizen that was illegally removed from the USA by a foreign national of Australia without the consent, permission and or approval from her USA American Citizen father.  You are trying [sic] to manipulate and forget the facts that your client, citizen of Australia kidnapped an American citizen and minor regardless of her false accusations.

16. On 25 November 2019 at 6.32am AEST the father replied again with his solicitor and another solicitor from the same firm copied in:

    Before you decide to try and steamroll the American Courts and find a favourable forum/ court / country to favor your client please be advised it’s already been document in its jurisdiction of America (USA) [City N State B] where the child was born and resident of.  Your client removed a minor from the USA to Australia, falsified an application for Australian citizenship without the fathers [sic] consent and committed fraud and theft before illegally relocating (kidnapping) my child from the state of [State B] USA to Australia.

    […]

    You have no jurisdiction, fight or leverage to steamroll the USA. See you Wednesday.

    Ms Dellidis notes that the reference to “See you Wednesday” is reference to the matter being listed before Registrar George on Wednesday 27 November 2019.

17. At 6.48am (AEST) on 25 November 2019, the father sent a final email to Ms Bristow, without copying in his solicitor:

    Ps: Please don’t attempt to contact me again in an unprofessional manner.  Please keep everything legal under the USA justice system where me and my daughter [X] fall under as American citizens, [State B] [sic] USA residents.  Please do us and everyone a favor and keep your Australian , please just return out American minor citizen to her family!!!  Last chance for negotiation

18. On 26 November 2019 a Report and Recommendation of the General Magistrate and Notice of Filing was filed by the General Magistrate of the Circuit Court of the Eleventh Judicial Circuit in and for City N County, State B.  It was reported that the “Husband’s Motion for Determination of Jurisdiction Over The Minor Child Pursuant to the UCCJEA” was heard on 22 November 2019 in the Eleventh Judicial Circuit after having been referred on 23 July 2019.  The father’s solicitor Mr G appeared on the father’s behalf and the mother appeared by phone with Ms L appearing on her behalf.  It provided a procedural history of the matter that on March 22 2019, the mother filed a Petition for Dissolution of Marriage in State B, not Australia and in her Petition the mother “asked that a court in State B determine parental responsibility for the child and create a parenting plan for the child” after the child had been in Australia for 5 months.  On 6 June 2019 the father filed a Counter-Petition for Dissolution of Marriage “asking State B to determine parental responsibility for the child and create a parenting plan for the child”.  The mother filed an Amended Petition on 5 November 2019 that “claims Australia has jurisdiction over the child, not State B”;

19. The General Magistrate recommended or decided that:

    a)The husband’s motion was granted and that the child’s “home state” is State B and that State B therefore has jurisdiction;

    b)Under State B statute 61.514(1)(a) State B has jurisdiction if the child was resident in State B on the date of the commencement of proceedings or was resident in State B for 6 months prior to the commencement of proceedings and is absent from State B but a parent is still resident in State B;

    c)Under State B statute 61.514(1)(b) State B has jurisdiction if the child has not been resident in State B for 6 months but another court of another state does not have jurisdiction, the other court has declined to exercise jurisdiction on the basis that State B is the more appropriate forum and a parent of the child has “a significant connection with [State B] other than mere physical presence” and “substantial evidence” is available in State B;

    d)State B has jurisdiction if “no court of any other state would have jurisdiction under the above criteria;

    e)In this matter, the child lived and was cared for in State B by both parents for two and a half years before being “taken out of State B by the mother”;

    f)The child stayed in Country C with the mother for less than four months before being taken to Australia by the mother where the child has remained;

    g)The child had not been living in State B when proceedings were commenced or was resident for 6 months prior to commencement as the child had been absent from State B since 27 June 2018 when proceedings were commenced on 22 March 2019;

    h)State B is the home state and has jurisdiction because the child had not been resident in Country C nor Australia for a period of 6 months so neither Country C nor Australia is the child’s home state;

    i)The child’s residence in Country C nor Australia meets the above jurisdictional requirements so State B is the home state of the child and takes jurisdiction;

    j)If despite this Report Australia also takes jurisdiction of the child on 27 November 2019 when it is listed in Australia, there will be two states claiming jurisdiction and further hearings will be required and “The Judge, not the undersigned General Magistrate, and the judge in Australia will have to confer and proceed accordingly”.

20. At the first return procedural hearing on 27 November 2019 before Registrar George, the father nor his solicitor made an appearance.  Registrar George ordered that the matter be listed in today’s Judicial Duty List, the father file and serve any material on which he seeks to rely on 10 December 2019 by 6 December 2019, and the mother advise the husband his lawyer by email on 27 November 2019 of the Orders and directions made and send a copy of the sealed Order made.  It was noted that if the father did not file, appear or be represented by 10 December 2019 that the wife will seek to proceed on an undefended basis on 10 December 2019.

21. On 9 December 2019, the mother’s solicitor Ms Bristow affirmed an affidavit deposing to her attempted service of the Orders made by Registrar George on 27 November 2019 at 2.27pm AEST on 27 November 2019.  In the email marked annexure “…”,  Ms Bristow has attached a sealed copy of the Order and noted that the matter has been listed on 10 December 2019 at 10.00am AEST.  A similar email containing the Order and further hearing date was sent to the husband’s solicitor at 2.29pm AEST on 27 November 2019.  The father in reply at 2.46pm AEST on 27 November 2019 wrote:

    Thank you for your email and information but I must refuse to open or accept anything from you as you have no jurisdiction or rights in [sic] behalf of an American Citizen minor [X].  Your client applied for citizenship and passport for my daughter before filing for divorce in State B and changing it to Australia without my consent against USA and Australian law!  Your client planned an exit of the USA illegally prior to filing and committed a crime of fraud and theft!  Australian Consulate has been contacted for forge [sic] documents and USA Justice Department has been informed along with your government to clarify her violation by both citizen of [State B] to her family and your for [sic] national [Ms Neall] to [State B] during these proceedings or find herself in contempt of court and Federal Charges already in place! Thank you again not a lawyer so direct contact to Magistrate Judge of Courts in [K County] please!! Thank you

1. On 27 November 2019 at 5.50pm Ms Bristow replied to the father stating that the mother will seek to proceed with her application on an undefended basis if the father does not file material or appear today, as noted in the Order made 27 November 2019.  On 28 November 2019 at 10.08am AEST, the father replied to Ms Bristow’s email:

   Ounce [sic] again I would like to inform you that Australia does not have jurisdiction over my American born citizen of the USA.  Again I would like to inform you that [K County] 11^th Court, [State B] USA has jurisdiction over its [K County] resident X.  You have been informed for the third time now and forwarded the jurisdiction and court/hearing findings.  My daughter nor I are Australian citizens (legally).  Also you are not an Australian judge or the Australian courts to be contacting me.  Please be advised I will be forwarding this to the proper American Judge and American Court that actually has jurisdiction over this case, my daughter and myself showing your continued defiance and refusal to accept that America has jurisdiction!!!  This will only anger the [K County] Courts even more then [sic] they already are with [Ms Neall’s] behaviour.

   Thank you

2. On 27 November at 7.43pm the father replied again to Ms Bristow’s first email at 2.29pm AEST on 27 November 2019 that provided the Order and noted today as the next hearing date. The father asked the mother’s solicitors to produce all copies and the original application for an Australian Passport for X, the application for X to have Australian citizenship and the visa used for entry into Australia.  He says that he has requested same from the USA Consulate in Melbourne.  At the end he states “Please make sure copies are legible and ALL SIGNATURES in tact”. 

3. On 28 November 2019 at 9.51am AEST, a delayed automatic reply was received from the father’s solicitor Mr G stating that he is out of the office until 12 February 2019 and will not have access to his emails.  In capital letters at the bottom of the email is:

   Any e-mail containing a deadline is objected to and my failure to respond by any designated time frame is not agreed.  Do not submit any order, agreements, stipulations, or other Court documents conditioned upon a failure to respond being presumed to be an agreement.

4. On 28 November 2019 at 6.15pm AEST, the father replied again to the second email of Ms Bristow and copied in his solicitor and the other solicitor from the firm writing that State B, K County USA has jurisdiction, that the mother has falsified documents and to contact the K County 11^th Court instead of him about the matter. 

5. The child currently resides with the mother at the maternal grandmother’s residence in Town C and has been enrolled to commence four-year-old Kindergarten in 2020 for two days a week. 

6. I am comfortably satisfied that the father has adequate notice of the proceedings before me.  He chooses not to participate.

7. I am satisfied that this Court has jurisdiction to make parenting orders in relation to X.  In the event that the father initiates a return process under the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (“the 1980 Convention”), this Court’s power to make final parenting orders will be curtailed until the outcome of those proceedings is known.  The restriction will be that the Court not make final parenting orders pending the outcome of a Hague return application.  However, the Order I make today is an Order clearly within the Court’s power and I am satisfied it is in X’s best interests. 

8. If the father fails or refuses to participate in these proceedings he should anticipate that on 6 March 2020 final orders will be made in favour of the mother.  If the father choses to participate in these proceedings he should do so well prior to the mention on 11 February 2020.  Whether or not the father participates, a call will be placed to the father’s named attorney at the commencement of the mention. 

9. If the parties seek that I confer with the judicial officer seized of this matter in State B, I can do so but only with the consent of all parties.  Notably, Judge Judith Kreeger, is a former judge designated for the USA to the International Hague Network of Judges.  I am such a judge for Australia.  Judge Kreeger would be a useful reference point for protocols for direct judicial communication between me in Australia and the judicial officer in City N. 

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 10 December 2019.

Associate:

Date:  16 December 2019