RENNARD & YILMAN

[2015] FamCA 249

FAMILY COURT OF AUSTRALIA

RENNARD & YILMAN [2015] FamCA 249

FAMILY LAW – INTERIM PROPERTY - INJUNCTION – Where property proceedings were current both in Australian and in Country A –Where the question of forum is to be considered by this Court – Where the husband is restrained from continuing proceedings in Country A – Where the wife seeks an injunction to prevent the husband from dealing with properties in Country A and Country B.

FAMILY LAW – PARENTING – INTERIM – Where the mother lives with the child in Australia – Where the parties lived in Country A prior to the breakdown of the relationship – Where the mother claims that the father had acquiesced the child’s move to Australia – Where the father did not participate in the proceedings – Where orders are made to put the child on the Airport Watch List.

APPLICANT: Ms Rennard

RESPONDENT: Mr Yilman

FILE NUMBER: SYC 282 of 2015

DATE DELIVERED: 9 February 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Aldridge J

HEARING DATE: 9 February 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Pearson Emerson Family Lawyers

SOLICITOR FOR THE RESPONDENT: Watts McCray Lawyers (No Appearance)

Orders

1. That this matter is stood over, before myself for directions, at 9.30 am on Wednesday 18 February 2015.

2. That upon the Applicant Wife giving to the Court the usual undertaking as to damages and filing that undertaking within forty-eight (48) hours, orders are made pending further order, in accordance with paragraphs 5, 7 and 13 of the interim orders sought by the Applicant Wife in her Amended Initiating Application filed 29 January 2015, set out herein:

5.     The husband (Mr Yilman born on … 1966) his servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the child (C born on … 2011) from the Commonwealth of Australia without first obtaining the written consent of the wife AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of the child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch List until the Court orders its removal or the parties agree in writing.

7.     The husband is restrained by injunction from:

7.1selling, mortgaging, assigning, alienating or further encumbering the Country A property and the Country B property except with the written consent of the wife or by Order of this Court;

7.2doing any act or thing to prevent the wife from lodging caveats over the interest of the husband in the Country A property and the Country B property and from taking any steps to have such caveats removed, except with the written consent of the wife or by Order of this Court.

13.    The husband be and is hereby restrained by injunction from commencing or continuing any legal proceedings including proceedings number FCMC 807/2015 commenced by Petition filed in the District … and any country other than Australia against the wife, including but not limited to divorce, in respect of the child, division of their property, financial support for the wife and the child and any other matters arising from their marriage and the breakdown of their marriage pending determination of the wife’s Application for a final anti-suit injunction.

1. That the Applicant Wife is to notify the Respondent Husband and his lawyers of these Orders within twenty-four (24) hours. 

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 282 of 2015

Ms Rennard

Applicant

And

Mr Yilman

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. In these proceedings the applicant wife seeks a number of orders against the husband on an interim basis.  Today the wife seeks orders be made in relation to her son C, preventing him from being removed from Australia, orders preventing the husband dealing with property without the wife’s written consent and an anti-suit injunction restraining the husband from continuing proceedings that he has commenced in the District Court of Country A.

2. The parties commenced living together in Country A in late 2008.  They were married in D Town in 2009 and the child was born in 2011.  He and his mother moved to Country A to live permanently in October 2011.  The parties separated, according to the wife, on 22 March 2014 and on 24 July 2014 the wife and the child returned to Australia where they have lived since.

3. In October 2014, according to the wife, the husband signed enrolment documents enabling the child to be enrolled at school in Australia and an application to rent premises to be occupied by the wife and the child.  In Christmas 2014 the husband came to Australia and spent time with the child over a period of a few weeks.

4. On 19 January 2015 the wife filed an initiating application in this court seeking parenting and property orders.  On 11 October 2014 the husband commenced proceedings relating to the property and child of the relationship in Country A.  He discontinued those proceedings on 22 October 2014.

5. The husband has now recommenced proceedings in Country A on 20 January 2015, one day after the proceedings commenced here by the wife.  In those proceedings the husband seeks orders that the child live in Country A.  I infer from the form of the orders that it is his intention that the child would continue to live with the wife but spend significant time with the husband.

6. In determining which jurisdiction the parenting proceedings should continue, the court acts in what it considers to be the best interests of the child, rather than simply applying the “not inconvenient forum” test.  Thus any consideration as to where the proceedings should be continued will focus, at least in relation to the parenting proceedings, on the interests of the child.  He has been in Australia since 24 July 2014 and the evidence of the mother, if accepted, on such a hearing would establish that even if the husband had not consented to that arrangement, he had acquiesced in it insofar as taking steps to enrol the child at school and to arrange premises for the wife to rent and coming to Australia to spend time with the child. 

7. The fact that the child is present in Australia would be a significant factor on any such application.  It is also important to note that there is not any application to have the child returned to Country A on the ground that he was removed from there improperly by the wife and that allegation is not made in the proceedings that the husband has commenced in Country A, even though he asserts in documents filed in that court that he does not consent to the child living in Australia.

8. It is clearly undesirable that there be two courts in two different countries dealing with the parenting of the one child. It is therefore appropriate for steps to be taken to determine which court is the appropriate court to determine the issue.  Given that the child is in Australia, and given that the wife commenced her proceedings first, and given that the father had commenced proceedings in Country A but shortly thereafter discontinued, I am of the view that it is appropriate that this court should determine that issue.  In aid of determining that issue, pending the determination of whether or not there should be an order in final terms restraining the husband from continuing the proceedings in Country A, there should be an order of a temporary nature restraining the husband from continuing the proceedings in Country A.

9. The wife has tendered two emails which will be marked Exhibit 1.  In an email dated 31 January 2015, the husband said:

   I have already had to accept loosing (sic) my wife and son so there is only the battle left to play and play at will to the bitter end and there is not 1 $ left to find on the floor…  This will be utter hell for the next 2 years, maybe 10 … a life’s work.

10. The email is sufficient to raise a concern about the steps that the husband might take in relation to his property and the wife seeks an order that the husband be restrained from dealing with his Country A property and Country B property.  They are premises in Country B and Country A respectively.  These injunctions do not include any of the husband’s businesses or other business activities, and the injunction enables the husband to deal with those properties with the written consent of the wife or order of the court.  I am satisfied that it is appropriate to make those orders, provided the usual undertakings to damages are provided.

11. Finally, there is an application for orders to be made pending the final hearing for the child not to be removed from Australia and to be placed on the Airport Watch List.  Given what seems to be the aggressive response of the husband referred to in the email above that is a prudent order to make.  Again, this order will be made as an interim order pending further order of the court.  And the matter will come back before the court on 18 February 2015 so that the husband can then make submissions as to any orders he wishes as to the continuation of those orders.

12. The wife’s application and affidavit have been forwarded to the husband and his lawyers in Country A by email on 30 January 2015.  It is clear from Exhibit 1 that he received those documents because one was dated 30 January 2015 and says “other tham (sic) the documents susan sent me i shall not act on any other matters”.

13. I am satisfied that the husband was aware of these proceedings and has chosen not to attend. The two emails will be marked Exhibit 2, which are the emails from the wife’s solicitor forwarding the documents to the relevant email addresses.

14. Accordingly I make the orders as indicated above.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 9 February 2015.

Associate: 

Date:  13 April 2015