Phuoc and Viet

[2016] FamCA 1092

FAMILY COURT OF AUSTRALIA

PHUOC & VIET [2016] FamCA 1092

FAMILY LAW – Ex parte proceedings – parenting – passport to issue without consent of father

APPLICANT: Ms Phuoc

RESPONDENT: Mr Viet

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 12043 of 2016

DATE DELIVERED: 9 December 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 9 December 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Keenan

SOLICITOR FOR THE APPLICANT: Women’s Legal Service

COUNSEL FOR THE RESPONDENT: No appearance

SOLICITOR FOR THE RESPONDENT: Unknown

Orders

IT IS ORDERED THAT

1. The Mother's application be heard ex parte.

2. The Mother be excused from filing a certificate pursuant to section 60I of the Family Law Act in the circumstances of the case as set out in the Affidavit and Notice of Risk filed contemporaneously and due to the urgency of this application.

IT IS ORDERED UNTIL FURTHER ORDER THAT:

1. The Mother have sole parental responsbility for the children, B, female, born … 2012 and C, male, born … 2014 (‘the children”).

2. The children live with the Mother.

3. The Father Mr Viet born … 1986 is hereby restrained from leaving the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police place the father's name on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australian and maintain the father's name on the Watch list until further order of the Court.

4. Once the children (or either of them) enter Australia, the Father and Mother by themselves, their servants or agents be and are each hereby restrained from removing, attempting to remove, or causing or permitting the removal of the children from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police place the name of the said children B, female, born … 2012 and C, male, born … 2014 on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children's name on the Watch list until further order of the Court.

IT IS FURTHER ORDERED:

1. That as soon as practicable the Registry Manager serve a sealed copy of these Orders upon the proper officer of the Australian Federal Police AND IT IS REQUESTED  that the Australian Federal Police give effect to this order.

2. That pursuant to s67N (2) of the Family Law Act 1975 the business manager of Centrelink provide to the Registrar of the Family Court of Australia at Melbourne information about the location of the Father Mr Viet born … 1986 that is contained or comes into the record of Centrelink.

3. Pursuant to s67ZD the Father is directed to produce all passport(s) or travel documents he currently uses to travel with to the Registry of the Family Court of Australia ("the Registry") and such passport(s) or travel documents shall be held by the Registry until further order.

4. The Mother be and is hereby permitted to cancel the existing Australian passports for the children B, female, born … 2012 and C, male, born … 2014 and to obtain a further Australian passport for each child and that the requirement of the Father to consent be dispensed with.

5. Until further order, the Mother be entitled to retain the children's passports and to make use of them.

6. Within seven (7) days of these Orders, the Father do all things necessary to direct the paternal family to deliver the children and any passports for them in her possession or control to the maternal family in Country D.

7. Until further order, the Father do all the things necessary to facilitate the return of the children to the state of Victoria, in the Commonwealth of Australia.

8. Pursuant to section 69ZW of the Family Law Act 1975 IT IS REQUESTED the Department of Health and Human Services ("DHHS") provide to the Court the following documents and information: (a) any notifications to the DHHS of suspected abuse of the children to whom the proceedings relate or of suspected family violence affecting the children including but not limited to any intake reports; (b) any assessments of the DHHS of investigations into notifications of that kind or the findings or outcomes of these investigations including but not limited to copies of investigation and assessment outcomes, any grounds of substantiations, case plans and case closure summaries; (c) any reports commissioned by the DHHS in the course of investigating a notification, including but not limited to any reports prepared for proceedings in the Children’s Court; and (d) in the event the DHHS have an ongoing investigation in relation to the children to whom the proceedings relate, any recommendations for the future arrangements of the children taking into account the orders sought by the parties in these proceedings.

9. The Father's time with the children be reserved.

10. The mother, through her lawyer, affect service of this Order on the father together with a copy of her application initiating proceedings filed 8 December 2016, her affidavit affirmed 8 December 2016 and the Notice of Risk of Abuse and be in a position to prove service.

11. This matter be otherwise adjourned to 16 January 2017 at 9.00 am before me estimated to take not more than one hour (“the adjourned date”).

12. As soon as practicable after service upon him of this Order, the father file and serve a Notice of Address for Service.

13. The wife’s application for a Commonwealth Information Order be adjourned to the adjourned date and the wife effect service of it in accordance with s67N(3).

14. I reserve liberty to the husband to make application on short notice to vary, suspend or discharge this Order or as he may be advised.

15. My reasons for decision this day be transcribed and when settled a copy be provided to the parties and the original placed on the Court file.

16. The evidence of the wife given this day be transcribed and placed on the Court file.

17. That pursuant to Sections 65DA(2) and 62B the particulars and the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Phuoc & Viet 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 12043 of 2016

Ms Phuoc

Applicant

And

Mr Viet

Respondent

REASONS FOR JUDGMENT

Ex Tempore

1. This matter comes before me in the judicial duty list. It is a parenting application concerning B (“B”), the parties’ daughter, who is nearly five years old, and C (“C”), the parties’ son, who is approaching three years of age.

2. The wife seeks to proceed ex parte; that is without having provided the father with procedural fairness in relation to the application by having the application served upon him or otherwise. It is a fundamental entitlement of persons in our legal system to have notice of proceedings in which orders are sought which affect them, but there are some circumstances in which it is appropriate to allow one party to proceed in court for some order to obtain orders without notice to the other party. I consider this is such a case.

3. I have regard to the affidavit of the wife. The wife has given oral evidence today in which she assures me that there is nothing material omitted from her affidavit. She deposes that the two children are in Country D. The daughter is with her family, and the wife wants to bring her daughter back to Australia, but cannot do so, because the paternal grandmother has the daughter’s passport. The parties’ son is with the paternal grandmother, and she will not permit the mother to remove him from Country D. The paternal grandmother holds the Australian passports for both children.

4. The mother has given evidence that to the best of her knowledge and belief the father is in Australia. She does not know his current whereabouts and seeks a Commonwealth location order. In that regard the mother has to serve the proper officer of the Commonwealth entity to which the order is going to be directed. Consequently, I have adjourned that part of her proceedings to 16 January 2016. On that date, if the father has by some means been able to serve, he should attend court. Otherwise the mother is likely to be looking for an address for the court to effect service of her proceedings on the father.

5. I will not repeat the history which is set out in the mother’s affidavit, because that speaks for itself. I am satisfied that s 111CD of the Family Law Act 1975 (Cth) does not present any problem.

6. It is the mother’s case that the two children are held against her will in Country D and that she wants both children to be returned to Australia.

7. It appears that she would be able to bring about the return of the daughter, B to Australia if she had a passport or travel documents to do so because B is cared for by the wife’s family.

8. I have made orders sought in relation to the issuance of new passports for both children. The mother will have to negotiate with the appropriate government authority about cancellation of the existing passports and the issuance of new passports, of which she is to take possession and then entitled to use.

9. The court has been advised that it is the mother’s proposal to proceed, as soon as she has a new passport for the daughter, to Country D for the purpose of bringing the daughter home to Australia. That should not be difficult, because she deposes that the daughter is in the care of her family. What may be difficult is if the father or the father’s family or some other interested person has obtained an order in Country D or brought to bear some restriction on the removal of B from Country D. I simply do not know whether that has occurred.

10. I am not aware of any plans that the mother has for the transport of C back to Australia, because C appears to be firmly under the control of the paternal grandmother.

11. For the avoidance of doubt this court does not condone self-help or any violent or abrupt action in relation to the recovery of children. As I have made orders without the father having been accorded natural justice, I will reserve an entitlement by him to seek to set aside, vary or suspend this order or any part of this order or as he may be advised.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 9 December 2016.

Legal Associate:

Date: 20 December 2016