Russell and Russell (No 2)

[2012] FamCA 243

FAMILY COURT OF AUSTRALIA

RUSSELL & RUSSELL (NO 2) [2012] FamCA 243

FAMILY LAW – CHILDREN - Airport watch list order – Previously discharged as of early April – Wife and child remaining in Australia – Child’s passport unavailable – Upcoming Magistrates’ Court intervention proceedings – Wife’s delay in permanently departing Australia with child for India – Airport watch list reinstated

Family Law Act 1975 (Cth)

APPLICANT: Ms Russell

RESPONDENT: Mr Russell

FILE NUMBER: MLC 8378 of 2010

DATE DELIVERED: 13 April 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Young J

HEARING DATE: 13 April 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Devine

SOLICITOR FOR THE APPLICANT: Lampe Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Russell in person

SOLICITOR FOR THE RESPONDENT:

Orders

IT IS ORDERED:

1. THAT until further order the husband and wife by themselves, their servants or agents be and are each hereby restrained from removing, attempting to remove, or causing or permitting the removal or attempted removal of the child H RUSSELL (the child”) born … August 2008 (who is known by his parents as T) from the Commonwealth of Australia  AND IT IS FURTHER ORDERED  that the Australian Federal Police place 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 of the Court.

2. THAT as soon as practicable the solicitor for the wife serve a sealed copy of this order upon the proper officer of the Australian Federal Police AND IT IS REQUESTED  that Australian Federal Police give force and effect to this order.

3. THAT when the wife has purchased her international airline flight for herself and the child and is ready to depart the Commonwealth of Australia an application is then to be made by her to a Judge of this Court for the discharge of that Airport Watch List order and appropriate prior notice in writing, and documents must be served upon the husband of that intended application.

4. THAT the husband is to deliver up to the wife the child’s Indian passport as soon as it is returned to Australia by his mother when she arrives in Australia on or about 28 April 2012 and thereafter the wife is to retain that passport in her safe keeping pending her departure with the child from the Commonwealth of Australia pursuant to paragraph 4 of the earlier orders of this Court pronounced 7 March 2012.

5. THAT the husband is to be provided all proper makeup time with the child and that is to be negotiated between the wife’s solicitor and the husband and is to occur within the next sixty (60) days.

6. THAT the husband spend further time with the child this day from 1.30 p.m. until 2.30 p.m. he to collect the child from the mother and return the child to the mother, punctually, at the main front entrance of this Court building, 305 William Street, Melbourne and for the purposes of such time spent the child is to remain within the adjoining gardens or a nearby food shop and is not to be taken more than one (1) kilometre from this building.

7. THAT the husband make, file and serve an updated Notice of Address for Service this day.

8. THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to the parties.

9. THAT the admitted arrears of spousal maintenance in the sum of $600 are to be paid by the husband within a period of forty-five (45) days to the wife together with his continuing to pay all such ongoing spousal maintenance as was ordered pursuant to paragraph 13 of the earlier orders dated 7 March 2012.

10. THAT otherwise the wife’s Application in a Case filed 11 April 2012 and the husband’s Response thereto filed this day be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Russell & Russell (No 2) 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 MELBOURNE

FILE NUMBER: MLC 8378 of 2010

Ms Russell

Applicant

And

Mr Russell

Respondent

REASONS FOR JUDGMENT

1. I have before me an application in a case issued by the wife on 11 June 2012.  That application is supported by an affidavit, sworn and filed that same day.  The wife seeks the reinstatement of the airport watch list order, the return of the child’s passport to her and for payment of $600 being arrears of spousal maintenance.

2. The husband now acts for himself.  His solicitors, immediately prior to their filing a notice of ceasing to act, filed his response on 12 April 2012.  He seeks orders for the application of the wife to be dismissed, that he spend makeup time with the child known as T, for designated periods.  His response is supported by a substantial affidavit and annexures thereto which he has affirmed and has been filed on his behalf.

3. I first turn to the airport watch list order.  My orders in the defended proceedings pronounced 7 March 2012, provided for the discharge of the then existing airport watch list order as of 9 April 2012.  That has now occurred.  It was contemplated that date was after the period of appeal had expired and then allowed the wife a period of seven days to leave the Commonwealth of Australia with T.  For reasons that are now explained in the wife’s affidavit, she has not yet departed this country to take up permanent residency in India with her son.

4. In summary, those reasons are that the child’s passport was taken by the husband’s mother on her return to India, after the conclusion of the hearing of the previous defended proceedings.  It is now said that his passport is with her in that country, although she is returning to Australia on or about 28 April of this year, to spend further time with her son, the husband in these proceedings.

5. Otherwise, the wife has explained that she does not have the money.  She needs approximately $2,000 for air fares.  She currently has expenses which are outstanding and which include a considerable sum in crèche fees accumulated as a result of T being minded during the defended court proceedings.  Otherwise, it is said that she has arrears of electricity, gas and other domestic charges which she wants to pay prior to her departure.

6. However, of most significance is the fact that charges have been brought against her alleging breach of the domestic family violence intervention order.  That was an order that the husband had taken out and which was in place at the time of the defended hearing.  The return date in the Melbourne Magistrates’ Court of those proceedings is 13 June of this year.  The wife intends to stay and defend that charge.  Were she to depart the country, it may be that orders could be made in her absence or a warrant could be issued for her arrest.

7. In future years, and on the basis of the defended orders that I have pronounced on 7 March, the wife is required to return T to Australia for purposes of the father spending time with him.  For her to have to return to the country with an order extant or with a warrant alive for her detention, would be wholly inappropriate.  Thus I can well understand why it is that she would remain in this country to oppose any conviction for breach of the existing family violence order.

8. I have endeavoured to foreshadow with the husband the fact that he will likely be the primary witness in those proceedings.  What is alleged is various telephone calls made by the wife in breach of the intervention order which the husband obtained.

9. Whilst the police may be the complainant in those proceedings, nevertheless, they would rely upon the evidence of the husband.  If he chose not to give such evidence or otherwise to request the proceedings be discontinued because his wife is departing the Commonwealth of Australia, they may present good reasons why the police officer concerned would reflect upon the proceedings and whether they should be continued or whether all proceedings, including the existence of that family violence order, could be discharged.

10. I carefully make no finding on those matters.  It is clearly a matter in another Court of State Jurisdiction, but my comments are recorded to reflect upon some common sense view that could be taken and which could lead to the wife’s earlier departure from Australia with T.

11. I do intend to pronounce immediately, an airport watch list order.  It is important that the husband resumes spending time with T pending his removal from Australia.  That is already provided for on an ongoing basis in paragraph 5 of my earlier orders.

12. I will now reinstate the airport watch list order.  That will immediately facilitate the husband spending one hour from 1.15 until 2.15 this day with the child.  I stress that it is one hour only.  The child is to be taken only to the Flagstaff Gardens immediately opposite the court, or otherwise to a local food shop or restaurant for the purposes of a meal and he is to be returned to his mother at 2.15 pm at the main front entrance of this court.

13. Otherwise, the resumption of the father’s time with the child is from 10 o’clock Saturday until 5 o’clock Sunday inclusive.

14. There have been two periods of past contact missed and somewhere and somehow these two parents must negotiate, and I require the mother to give appropriate makeup time so that T can enjoy spending that time missed with his father.

15. The existing spousal maintenance order is provided for in paragraph 13 of my orders.  The husband is to pay $300 per week punctually, and until the final departure of the wife and the child from the Commonwealth of Australia.  That order is continuing and I will not interfere with same.

16. The husband has sought to emphasise the additional moneys that the wife is allegedly receiving from the Commonwealth Government by way of family allowance or other Centrelink benefits.  He asserts that she has access to a considerable sum of income.  However, I am not rehearing any application.  There is no such application before me and my orders were intended to be final, or be it interim orders until her departure.

17. The husband must repay as soon as practicable, the $600.  I will not take any enforcement proceedings to garnishee that sum at this time.  I do not want to embarrass the husband with his employer.  Whilst he has been late in the past, it has been a matter of a few days and I am mindful, at this stage and without any other specific application from the wife to enforce payments, that I should take no steps so to do.

18. The wife’s affidavit highlights that she may remain in Australia until August.  I do understand that paragraph 15 of that document is drawn to say that she does not have an exact date upon which she plans to return to India but she would anticipate that it would be prior to August 2012.  Subject to her having the money for airfares and upon the conclusion of the Melbourne Magistrates’ Court hearing, I can envisage no good reason why she would not leave Australia in late June or early July.

19. The other matter that is before the court is that the wife would have the airport watch list order discharged upon her advising the court when she is prepared to leave the country, and then on an ex parte basis and without notice to the husband.

20. The wife’s submission, through Ms Devine of counsel who again appears on her behalf this day, is that a level of secrecy is required.  The wife is evidently concerned, as is expressed in paragraph 16 of her affidavit, that should the husband know of her departure date, he could organise his family, friends or other agents, or even the police, or undesirables in India, to be awaiting her arrival at Delhi or whatever other international airport she may first fly to and/or for any onward journey to J by domestic flights, to have a party awaiting at the airport to take or to seize T and forever remove him from the wife.

21. I cannot speculate as to the likelihood of such actions.  I can visualise those airports in India being crowded, that perhaps the police or others have more important matters to deal with and that in any event, there is no obligation upon the wife to disclose the particular airflight or day of travel.  However, what I require and what is in T’s best interest is for the father to know when it is his final visit in Australia and for him to be able to farewell T in a proper manner.  It would be wrong to deny T that opportunity to know that it is the last time that he is likely to be with his father for perhaps a lengthy period.

22. I will therefore make the airport watch list order on an ongoing basis and it will be necessary for the wife, given her uncertain date of departure to approach the Court for its discharge.  Prior to so doing, she must advise the husband of the day and time upon which that matter is to be before the court.  It should proceed as a consent order.  I will not change the orders that the wife and T can depart Australia.  However, it is to be done with knowledge to the husband and to afford him the farewell opportunity and time spent with T.  If I am unavailable, that application can be listed before any judge of this court and these ex tempore reasons for judgment will be available to highlight why the extension of the airport watch list order was made this day and my intention that it be appropriately discharged.

23. I record that I have read the letter of 10 April 2012 from the husband’s solicitors which he tendered but I will have my court officer return that document to him now.  I will have these ex tempore reasons for judgment transcribed and placed upon the court file and made available to the parties.  I now intend to pronounce my orders which will be separately prepared by my associate and made available to the parties this day.  Transcript can stop.

I certify that the preceding Twenty Three
(23) paragraphs are a true copy of the reasons
for judgment of the Honourable Justice Young
delivered on 13 April 2012.

Associate: ……………………………………………………………

Date:  …………………………………………………………………