Robinson & Bale

[2020] FamCA 1096

FAMILY COURT OF AUSTRALIA

Robinson & Bale [2020] FamCA 1096

File number(s):

CAC 2817 of 2020

Judgment of:

BENNETT J

Date of judgment:

15 December 2020

Catchwords:

FAMILY LAW – ABDUCTION – where child allegedly wrongfully removed from Australia to Ireland – where applicant seeks orders for substituted service – where the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters does not apply.

Legislation:

Convention on the Civil Aspects of International Child Abduction, opened for signature of 25 October 1980, Hague XXVIII, entered into force 1 December 1983.

Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, entered into force 10 February 1969 and concluded 15 November 1965

Family Law Regulations 1984 (Cth)

Number of paragraphs:

19

Date of hearing:

15 December 2020

Place:

Melbourne

Counsel for the Applicant:

Ms McLeod

Solicitor for the Applicant:

Farrar Gesini Dunn

Counsel for the Respondent:

Ex parte

Solicitor for the Respondent:

ORDERS

CAC 2817 of 2020

BETWEEN:

MR ROBINSON
Applicant

AND:

MS BALE

Respondent

ORDER MADE BY:	BENNETT J
DATE OF ORDER:	15 DECEMBER 2020

THE COURT ORDERS THAT:

1.The applicant do all acts and things within his power to bring his Initiating Application filed 10 December 2020 to the attention of the respondent mother including, but not necessarily limited to, the following:-

(a)by emailing a copy of the Initiating Application and the father’s affidavit and Notice of Risk to the following email address of the respondent mother - ....

(b)by sending a message to the mother by Facebook messenger telling the mother about the proceedings and that the relevant documents have been emailed to the email address contained in this Order.

2.The applicant be in a position to prove compliance by him or on his behalf with the provision of paragraph 1 hereof.

3.Upon compliance by the applicant or on his behalf with the provisions of paragraph 1 hereof, I deem that the documents mentioned have been duly served on the respondent mother.

4.For the avoidance of doubt, the procedures for substituted service provided in the paragraphs (1) and (2) of this Order are in addition to any request or application that the applicant may be entitled to take pursuant to the Hague Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters.

5.Upon the child X born … 2013 being returned to Australia he be and is hereby restrained from leaving the Commonwealth of Australia until further order.

6.Each of the applicant (Mr Robinson, born … 1977) and the mother (Ms Bale born … 1980) and their servants and agents be and are restrained from removing or attempting to remove or causing or permitting the removal of the child X, MALE, born … 2013 from the Commonwealth of Australia.

7.IT IS REQUESTED that the Australian Federal Police give effect to the preceding paragraphs of this 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’s name on the Watch List until further order.

8.A copy of this order be emailed immediately to the AFP Operations Coordination Centre by the Melbourne Registry of the Family Court of Australia.

9.This matter be otherwise adjourned to the Judicial Duty List on 16 February 2021 for determination of the applicant’s Application for the return of the child X born … 2013 to the Commonwealth of Australia and into the applicant’s care (paragraph 6 of the orders sought.

10.That pursuant to S67N of the Family Law Act 1975, the Secretary of the Department of Home Affairs provide to the Registry Manager of the Family Court at Canberra any information about the child’s location contained in the records of the Department, including outgoing passenger records for the child and the mother for the period 1 July 2020 to date.

11.That the Registry Manager of the Family Court at Canberra is requested to provide a copy of any such information to the solicitors for the applicant.

12.That a Registrar of this Court arrange for a copy of these Orders to be forwarded to the Secretary of the Department of Home Affairs.

13.My reasons for decision this day be transcribed and when settled placed on the Court file.

AND IT IS NOTED

A.That the applicant and his practitioners have been informed that they can contact Reunite International to enquire about parenting testing procedures across international borders.

B.That the applicant proffers an undertaking not to discuss X’s parentage with X until such time there is some expert evidence about how best to do that.

.

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

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 17.02 Family Law Rules 2004 (Cth).

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

EX TEMPORE REASONS FOR JUDGMENT
EX PARTE

BENNETT J

1. This matter comes before me in the Judicial Duty List as an urgent ex parte application initiated by Mr Robinson, consequent upon the respondent, Ms Bale, having removed the child, X, born in 2013, from the Commonwealth of Australia on or about 22 November 2020.  Mr Robinson asserts that X was removed without his consent.  Furthermore, that he is X’s biological father, notwithstanding that the respondent’s husband, Mr B, is detailed on X’s birth certificate as X’s father. 

2. Parties are entitled to natural justice and procedural fairness.  Insofar as the applicant seeks to proceed urgently and ex parte the respondent mother, he principally seeks orders which will enable the respondent to be served with the substantive application.

3. Mr Robinson’s application is supported by an affidavit sworn or affirmed by him on 8 December 2020.  He sets out a history of the matter.  The applicant is 43 years of age.  The mother is aged 40.  They commenced a relationship in 1999 and separated approximately 14 years later in July 2013, at which time the mother was pregnant with X.  Their relationship had not been continuous and there had been previous separations.  X was born after the respondent and the applicant separated and when the mother had commenced a relationship with Mr B, her husband. 

4. The applicant deposes that unbeknownst to him, until approximately 2015, the mother registered Mr B as the father of X.  The mother and Mr B have gone on to have two children of their relationship.  The applicant’s evidence is that since X was approximately four months old, he has spent time regularly with the applicant, including, in 2019 and 2020, overnight time. 

5. In March 2020, it came to the attention of the applicant that the mother may be wanting to relocate to England or to Ireland. 

6. The applicant deposes that once he was aware of this information, he noticed that the mother began impeding X’s frequent contact with him.  In general terms, he thought that he was being marginalised by the mother.

7. The applicant does not pay child support but says that he has put money aside for X in a bank account. 

8. To the applicant’s knowledge, X has not been informed that the applicant is X’s natural father, or at least, had not been informed when the applicant last saw X, which was on the weekend of 24 October 2020. 

9. The father deposes that on Sunday, 22 November 2020 he was contacted by the respondent’s brother and informed that the mother and her children, including X, had flown to Ireland to reside closer to her partner’s family.  On 22 November 2020, the applicant says he sent the mother a message on Facebook saying: 

   Can’t believe you have done this.  I will spend every dollar I have to get him back.  Trust me, it will happen.  You have made a decision you will regret.

10. The mother is recorded as having responded to the message with: 

    DO NOT EVER MESSAGE ME AGAIN.

11. The applicant proposes making an application for a return order pursuant to the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction[1] (“the 1980 Convention”).  The father will need to prove that he had parental responsibility for X or in the language of the 1980 Convention, “rights of custody” that were being exercised at the time of X being removed from Ireland. 

    [1] Convention on the Civil Aspects of International Child Abduction, opened for signature of 25 October 1980, Hague XXVIII, entered into force 1 December 1983.

12. This is a mater in which the applicant may seek to rely on the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters[2](“1965 Service Convention”) which entered into force between Australia and Ireland on 1 November 2010.  X’s habitual residence may be impacted by issues of the applicant’s paternity of X.

    [2] Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, entered into force 10 February 1969 and concluded 15 November 1965.

13. Turning to the father’s application, today he seeks orders that this Court facilitate service of documents in these proceedings pursuant to the1965 Service Convention.  I have pointed out to Ms McCleod, who appears for the applicant, that Part IIAB of the Family Law Regulations 1984 (Cth), which give expression to Australia’s obligations under the 1965 Service Convention, requires requests to be made of the registrar in the registrar’s capacity as “a forwarding authority”. As such, this is not an application that should be made to a judge. It should be made to a registrar in that particular capacity.

14. Briefly, the 1965 Service Convention is an international private law treaty to facilitate service of documents in certain proceedings between contracting states. The relevant regulations appear in Part IIAB, being from reg 21AC to 21AJ of the Family Law Regulations 1984 (Cth). The difficulty that the father faces in employing the 1965 Hague Service Convention is that it expressly, in paragraph 1, does not apply where the address of the person to be served with a document is not known. The applicant does not know the physical address of the mother.

15. The applicant deposes to having previously contacted the mother.  On 22 November 2020, a message was sent on Facebook Messenger which appears to have been responded to by the mother.  Additionally, the applicant’s lawyers, Farrar Gesini Dunn, have communicated with the mother by email, which received an indirect response from the mother to the father, which satisfied the applicant that the mother had received the communication from his solicitors.  Even though the 1965 Hague Service Convention seems not to apply to this case, until such time as the applicant knows the actual address of the respondent mother, I am prepared to exceed to the application for substituted service which is set out at paragraph 3 of the applicant’s orders sought.

16. I will also make the information order that the applicant seeks against the government department.  I am satisfied that the department has the required notice.

17. Paragraph 4 of the application seeks details in relation to the child’s immediate circumstances, such as his residential address, the names of all other persons who reside at the address and the name of any school at which X is enrolled.  The order requiring the child to be brought back into the Australian jurisdiction really rests in paragraphs 5, 6 and 7 of the orders sought by the applicant, which are, in essence, a recovery order and incidental orders for the child to be apprehended and put into the custody of the applicant.  Recovery orders of the nature sought do not operate outside Australia, therefore, there would appear to be little utility at this point of a recovery order issuing. 

18. The applicant seeks an order that the respondent mother forthwith return the child, X, to the Commonwealth of Australia and abide further order of the Court.  Paragraph 8 of the orders sought by the applicant require the surrender by the mother of the passport for the child once she lands in Australia.  Paragraph 10 contains an application for a watch list order to prevent X being removed from Australia subsequently.  I will make the watch list order.  However, the return order should await service of the application on the respondent mother and the mother being accorded an opportunity to respond.  I will adjourn that aspect until February next year.

19. I am satisfied that the Order I make is in X’s best interests having regard to the facts as I understand them to be. 

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bennett.

Associate:

Dated:       15 December 2020