Russell and Russell (No. 3)

[2012] FamCA 487

FAMILY COURT OF AUSTRALIA

RUSSELL & RUSSELL (NO. 3) [2012] FamCA 487

FAMILY LAW – DIVORCE -Dissolution of marriage application – Husband temporarily departed Australia – Wife awaiting return to India – Question of habitual residence in Australia and whether Australia is an inappropriate forum for the divorce orders to be pronounced – Case management – Further written submissions sought to be filed by the wife – Adjournment of proceedings

Family Law Act 1975 (Cth)

APPLICANT: Ms Russell

RESPONDENT: Mr Russell

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 8378 of 2010

DATE DELIVERED: 20 June 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Young J

HEARING DATE: 20 June 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Devine

SOLICITOR FOR THE APPLICANT: Lampe Family Lawyers

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

Orders

IT IS ORDERED:

1. THAT all extant applications be adjourned for further hearing before Young J at 11.00 a.m. on Thursday 9 August 2012.

2. THAT a transcript of the extempore reasons for judgment delivered this day be taken out, placed upon the Court file and served upon the wife’s solicitors.

3. THAT I direct the wife’s solicitors forthwith serve upon the husband the sealed copy of the Court Order and accompanying extempore reasons for judgment:

   (a)by ordinary post to the address of his parents in India;  and

   (b)by email transmission with the sealed copy of the Orders and the Reasons for Judgment being scanned to the husband’s email address (as he has provided to the Court and to the wife’s solicitors) with a request for receipt to be generated by that email.

4. THAT within five (5) working days of service upon the husband of the Court Order and extempore Reasons for Judgment he must post, by certified or registered mail, the Indian passport of the child H born … August 2008 (also known as T) to the wife’s solicitors at their business address (and they are to ensure the husband has knowledge of that address).

5. THAT the wife’s solicitors make, file and serve written submissions on jurisdictional and legal issues within twenty-one (21) days, and immediately serve those documents upon the husband by email transmission and ordinary post, as provided for above.

6. THAT the husband thereafter may have fourteen (14) days to file appropriate legal and jurisdictional submissions, and to respond to the wife’s submissions.

7. THAT it is requested that the husband personally attend Court at the adjourned hearing date.

8. THAT the wife’s costs of and incidental to the hearing this day and of her Counsel and solicitor in attendance for one (1) hour be fixed in the sum of $750 and that sum be paid by the husband to the wife’s solicitors within thirty (30) days.

IT IS CERTIFIED

1. THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel for the wife.

IT IS NOTED

A.THAT there was no request for reasons for judgment to be delivered pursuant to the costs order pronounced. Costs were awarded on the basis of a consideration of s117(1), (2) and (2A) of the Family Law Act 1975 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Russell & Russell (No. 3) 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. The matter of Russell returns to this Court pursuant to my direction that it be listed for mention to ascertain certain primary or changed facts.  The first of those was as to the whereabouts of the husband in India.  The Court has received, through the chambers of my associate, several direct emails from the husband, including those dated 7 June and 19 June of this year.  He advised in those documents that he is temporarily in India, but there is no indication of if and when he may return to Australia. 

2. Additionally, and for reasons unknown to me, he re-emphasised in that email, in bold typing, that the wife is an Australian permanent resident.  More significantly, he also highlighted that any contact with or time spent with his son has been completely stopped since what he alleged to be the 14 April 2012 violation of court orders. 

3. With that background the Court does not have any current address for service of the husband other than his email address.  The Court does not know, and the husband has carefully failed to advise the Court, of his return date to Australia. 

4. The wife is in court today represented by Ms Devine of Counsel and her solicitor.  She has indicated that she remains in Australia and cannot travel, as the child’s passport was taken by the father and is in his possession in India.  I am advised that many requests have been made for the return of the passport, but the husband simply has refused to post or otherwise send by registered courier that passport document to Australia. 

5. The child known as T, is not entitled to an Australian passport, and whilst eligible for permanent residency, he must live a period of four years in Australia before a passport can issue.  Thus, he is without travel documents.  If the mother had both her passport and his passport she would return to her family in India.  She said that she cannot travel without the child and that is, of course, wholly understandable. 

6. There were other proceedings of a family violence nature and/or intervention orders to be heard in June in Melbourne, but all of those proceedings have been discontinued, most probably because of the husband’s departure for India. 

7. There is one proceeding remaining in Australia, and that is the husband’s application for a Decree Nisi of dissolution of marriage.  Those proceedings were uplifted from the Federal Magistrates Court.  I have heard the proceedings, along with the defended relocation and parenting case, whereby I made orders permitting the wife and child to travel to and live permanently in India.  I have not yet delivered reasons for judgment and pronounced orders upon the divorce.  

8. The central arguments in the proceedings focused upon whether or not the husband, as applicant, was ordinarily resident in Australia at the time of filing the application.  The other significant argument related to whether Australia was not an inappropriate forum for the hearing and determination of the divorce application.  I have heard considerable legal argument on that matter. 

9. Because of the husband’s departure for overseas, I relisted the matter for mention to ascertain whether there were to be any further arguments or submissions presented to the Court on either the question of residency or more particular, whether Australia remained an appropriate forum for the hearing of that application and the pronouncement of a Decree Nisi of dissolution of the Indian marriage, where both parties and the child had been born and to where the husband has now returned to live. 

10. Ms Devine has requested the opportunity to file further written submissions.  I had understood I would have heard and determined the matter today, but I have been shown an email sent from my associate’s office listing the matter today at 9.30 a.m. for hearing, but requiring written submissions to be filed by next Monday week.  Clearly, there was an error in the timetable in that document.  What I will require, and I will extend this courtesy to the husband, is that any and all further submissions, either on residency or more particularly, on the appropriateness of Australia as a forum to hear and determine the matter, are to be filed and served upon the other party within 21 days.  I will list the further consideration of the divorce application and hear all other submissions at 11 am on Thursday 9 August, 2012. 

11. I will therefore delay the handing down of any divorce judgment pending the completion of the proceedings and the ascertainment of all appropriate facts.  It will be necessary for these ex tempore reasons for judgment and a sealed copy of the order to be served upon the husband.  I will require the wife’s solicitors to serve upon the husband’s parents in India at their residential address all documents.  Otherwise, the wife’s solicitors have advised that they have the email address of the husband, and the documents, being the sealed copy of the order and the ex tempore reasons for judgment, when received, can be scanned and forwarded to the husband and a receipt requested when the email is sent. 

12. Finally, returning to the issue of the child’s passport, I am advised that all inquiries have been made in India and another passport cannot issue for the child whilst the original remains current, valid and in the possession of one of the parents, who in this case is living in India and refusing to return the passport to Australia.  There is no option for an Australian passport to issue, as the child currently does not meet our legal and residency requirements.  Effectively, the child is marooned in Australia with his mother. 

13. The husband may, of course, make contact to the child.  I am instructed he has the wife’s phone number.  He may send cards, presents and the like to the child and no doubt his efforts to make contact with the child and the quality of his writings, drawings, presents and the like as sent to this young child will all be important matters in determining what level of time he really does want to spend with the child, and to show his emotional interest or feelings for his son. 

14. I will have these ex tempore reasons for judgment transcribed, placed upon the court file and made available to the parties. 

I certify that the preceding Fourteen
(14) paragraphs are a true copy of the reasons
for judgment of the Honourable Justice Young
delivered on 20 June 2012.

Associate: ……………………………………………………………

Date:  …………………………………………………………………