SADKO & COLEMAN

[2015] FamCA 1188

FAMILY COURT OF AUSTRALIA

SADKO & COLEMAN [2015] FamCA 1188

FAMILY LAW – CHILDREN – URGENT APPLICATIONS – child habitually resident in Australia but presently overseas – child and parents are Australian citizens – interim parenting arrangements – arrangements for quick and safe return of child to Australia – best interests vis a vis publicity and criminal prosecution of a parent  in relation to matter arising out of recovery of child.

Family Law Act 1975 (Cth)

APPLICANT: Ms Sadko

RESPONDENT: Mr Coleman

FILE NUMBER: MLC 3290 of 2012

DATE DELIVERED: 29 December 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 29 December 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Combes

SOLICITOR FOR THE APPLICANT:	Clancy & Triado
SOLICITOR FOR THE RESPONDENT:	Mr Ross, Blackwood Family Lawyers

Orders

1. That paragraphs 3, 4 and 5 of the Order made by Judge Jones on 24 December 2015 be and are hereby suspended until further order.

2. Subject to compliance by the father with paragraph 3 of this Order, the parents do all acts and things necessary to facilitate the return to Australia of the child M born … 2008 (“the child”) on Airline X Flight … departing City Y on 1 January 2016 in the company of his paternal grandparents Mr C and Mrs C and, for that purpose:

   (a)The mother cause the maternal grandmother, being Mrs S to deliver the child to the paternal grandparents at the check-in counter for Airline X Flight … (“the flight”) at 10.30am (Country Z time) on 1 January 2016;

   (b)The paternal grandparents do all acts and things necessary to check themselves and the child into the flight and be ready to board;

   (c)IT IS REQUESTED that an Australian consular officer attend the airport and deliver the child’s travel documents and/or passport to the paternal grandparents;

   (d)The paternal grandparents proceed directly from the check in counter to customs with the child and then proceed through customs;

   (e)The mother and the father and the maternal grandmother Mrs S are each hereby mutually restrained by injunction from attending at the airport from which the flight leaves on 1 January 2016 and/or from causing permitting or suffering himself or herself to be a passenger on the flight.

3. The father do all acts and things necessary to leave Country Z and arrive in Melbourne, Australia by not later than 12 noon on 31 December 2015.
   
   

4. Until further order:

   (a)The child reside with the father from the time that the child arrives in Australia pursuant to paragraph (2) of this Order until 12 noon on 11 January 2016;

   (b)From 12 noon on 11 January 2016 the week about regime of residence provided for in the Order made in the Federal Circuit Court of Australia on 29 October 2013 be reinstated and the child reside with the mother and the father on a week about basis with changeovers to be at 12 noon on Monday and the father deliver the child to the mother at 12 noon on Monday 11 January 2016.

5. The parents do all acts and things necessary to endeavour to reach agreement by not later than 15 January 2016 about the school at which the child will be enrolled and attend at beginning of school year in 2016 and for that purpose:

   (a)Each exchange with the other (through their respective lawyers) the names and address of two schools which are proposed by him or her;

   (b)Each parent be and is hereby restrained by themselves and through their servants or agents from discussing the choice of school with the child or for causing permitting or suffering the child to be under the impression that he is entitled to choose school he is to attend. 

6. IT IS REQUESTED that the Department of Foreign Affairs and Trade provide to the mother any travel documents required by her in the event that she does not have possession or control of her passport.

7. IT IS REQUESTED the officers of the Australian Federal Police communicate this order to the proper officers of the Country Z police force.

8. Liberty to apply this week in relation to compliance and implementation of this order.

9. These proceedings be adjourned to the Senior Registrar’s list on 29 February 2016 (“the adjourned date”) for a further determination of interim parenting issues concerning the child M born … 2008.

10. For the purpose of these proceedings, being the mother’s application in a case filed 21 December 2015 and the father’s application initiating proceedings filed 22 December 2015, the mother stand as the applicant and the father stand as the respondent and, for the avoidance of doubt, the hearing on 7 January 2016 is vacated.

11. Each party file and serve an undertaking as to disclosure by 12 January 2016 and, for the avoidance of doubt, the disclosure include employment contracts, employment commitments, diagnosis of the need for treatment for use of illicit drugs or addition to substances.

12. Until further order, each party is at liberty to cause subpoena(s) to issue returnable in any subpoena list until the final hearing or on any date appointed by a registrar the return of subpoena or an any date notified to the parties by my Chambers for the return of subpoena(s) and the parties, their practitioners ensure that any subpoena is returnable and documents are released for inspection and are inspected, well prior to the adjourned date.

13. That by 12 January 2015 each parent file and serve a Statement of Financial Circumstances

14. In anticipation of the hearing on the adjourned date each party file and serve any amended application or response and all affidavit material or proofs of evidence in support of his/her case, as follows:

    (a)          The applicant mother by 17 January 2016; and

    (b)          The respondent father by 24 January 2016.

15. Each parent notify the other and the Independent Children’s Lawyer of the address at which he/she will reside upon return to Australia and keep each other party informed of any change thereto by not less than 5 days prior written notice.

16. By 18 January 2016 the Independent Children’s Lawyer publish to the parties his/her preliminary recommendation on what school the child should attend and what parenting orders ought be made on the adjourned date

17. Not later than 25 February 2016 each parent file and serve a minute of the order he/she seeks be made on the adjourned date, a list of affidavits relied upon and the name of counsel retained to appear on his/her behalf.

18. Pursuant to section 68L(2) of the Family Law Act 1975 (Cth) the interests of the child M born … 2008 be independently represented by a lawyer AND IT IS REQUESTED that Victoria Legal Aid arrange such representation and the independent children’s lawyer be appointed in sufficient time to be able to make recommendations about what school the child should attend in 2016 and what interim parenting orders would be in the best interest of the child on the adjourned date and in the meantime to cause subpoena to produce documents to be served on the proper officer of DHHS and the proper officer of A Clinic, such subpoena to be returnable prior to 1 February 2016.

    AND IT IS NOTED that Ms Mary Lonergan has previously been Independent Children’s Lawyer for this child

19. Forthwith upon appointment by the said Victoria Legal Aid or otherwise the independent children’s lawyer file a Notice of Address for Service.

20. Within 48 hours of notification of such appointment the solicitors for the respective parties provide to the independent children’s lawyer copies of all relevant documents relied upon.

21. Pursuant to section 11F of the Family Law Act 1975 (Cth) the parties to the proceedings attend an appointment/series of appointments with a family consultant of this Registry of the Court and for that purpose:-

    (a)The mother is to attend at Level 5 of this Registry of the Court at 9.00am on 1 February 2016;

    (b)The father attend at 11.00am on 1 February 2016;

    (c)The parent nominated by the family consultant to deliver the child to the Court be responsible for bringing the child to the Registry on the date and time specified by the family consultant;

    (d)The sequence and organisation of interviews is a matter within the sole discretion of the family consultant;

    (e)The family consultant may appoint further interviews for the parties and the child; and

    (f)It is requested that the Family Consultant prepare a Children and Parents Issues Assessment in writing and that it be made available to the parties, their practitioners and the Court by not later than 15 February 2016.

22. The family consultant may, at the direction of the Senior Registrar be required for cross-examination on the adjourned date.

23. For the purpose of the Children and Parents Issues Assessment in this matter the family consultant be and is hereby authorised to have reference to all documents filed in these proceedings as well as to any documents produced on subpoenae and released for inspection by all parties.

24. I reserve liberty to the parties to apply to me by 20 January 2016 in the event that the issue of the children’s enrolment at a specific school to enable his attendance on the first school day is not resolved and the resolution confirmed in writing by solicitors.

25. IT IS DIRECTED that any party wishing to cross-examine on a document or tender a document into evidence at the hearing on the adjourned date ensure that his or her counsel has a minimum of 5 copies of any such document available at the time of cross-examination, evidence or proposed tender (being a copy for counsel for each party, a copy for the witness and two copies for the Court).

26. By way of compliance with Rule 19.04 of the Family Law Rules 2004 by not later than 12.00 noon on 28 January 2016, the practitioner for each party provide notice in writing to his/her client of:

    (a)The actual costs incurred by the client up to and including that date;

    (b)Any expenses paid or payable to an expert witness or, if those expenses cannot be ascertained, after the making of all reasonable enquiries, an estimate of any expenses;

    (c)         The estimated length of the trial; and

    (d)The date of payments made and the source of the funds for the costs paid or to be paid so that;

    i.If costs have been paid by cheque, details must be provided of the account on which the cheque was drawn;

    ii.If costs have been paid by credit card, the details must identify the finance provider and number and name of the credit card facility; and

    iii.If costs have been paid in cash, the details must identify the payer.

27. Contemporaneously with compliance by the practitioner concerned with paragraph (26) of this Order, the practitioner provide a copy to the Executive Assistant to the Senior Registrar and to the other party (parties) to the proceedings.

28. That paragraphs 10 and 11 of the order of Judge Jones of 24 December 2015 being an Airport Watch List order continue in full force and effect.

29. That it is sufficient compliance with paragraph (3) for the father to present himself with a copy of his passport at the Registry of the Family Court of Australia in Melbourne prior to 2.00pm on 31 December 2015 and that IT IS REQUESTED that the proper officer of the Court confirm the father’s attendance with the mother’s practitioner by calling the telephone number provided by that practitioner for that purpose.

30. The father do all acts and things necessary to lodge the child’s passport with this Registry of the Court to be kept safely by the Court pending further order, such lodgement to be on 4 January 2016.

31. That the reasons this day be transcribed and provided to the parties and placed on the Court file.

32. That pursuant to s 65DA(2) and s 62B, the particulars of 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 these particulars are included in these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sadko & Coleman 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 3290  of 2012

Ms Sadko

Applicant

And

Mr Coleman

Respondent

REASONS FOR JUDGMENT

(revised)

Introduction

1. This matter comes before me on two urgent applications concerning M (“the child”) who is seven years old.  The child and both of his parents are currently in Country Z but it is common ground that the child resides in Australia and that he and the parents should return to Australia as soon as possible.   

2. Country Z is not a contracting state to the 1996 Child Protection Convention. Accordingly, this Court has jurisdiction pursuant to section 111CD(1)(e) of the Family Law Act 1975 (Cth) (“the Act”). The factual basis for jurisdiction is that the child is habitually resident in Australia and only temporarily present in Country Z. The mother, father and child are citizens of Australia within the meaning of section 69E(1)(b) and (c) of the Act.

3. The Order which I have made provides for the means by which the child will be returned and what parenting arrangements will apply pending a hearing before the Senior Registrar on 29 February 2016. 

4. I will not go through the history of this matter over and above providing necessary context and then I wish to mention a few pertinent issues.

Parties

1. The father whose application brings the matter to court today is 43 years old and a senior executive with an overseas company. He is in receipt of an income of approximately AUD$250,000.  He is based in Country Z currently and has been since approximately November 2014. 

2. The mother is not currently employed.  She is 41 years of age. She has received significant financial support from her mother, Mrs S.

3. The parents commenced cohabitation in approximately mid-2008 and separated in early 2012.  The child is their only child together; the mother has three children from a previous relationship, D who is 16 years old, E who is 14 years old, and F who is 12 years old. The older children lived substantially with the wife but have recently have gone to live overseas with their father.  It has been suggested that the three older children see the mother irregularly.

Proceedings

1. On 29 October 2013 final orders were made in the Federal Circuit Court at Melbourne concerning the child’s care and an alteration of financial interests between the mother and the father.  It was ordered, by consent, that the child would reside on a week about basis with his parents and I gather that is what occurred until approximately November 2014 when the father’s employment necessitated him living in Country Z.

2. The proceedings before the Court comprise two applications issued each without notice to the other party. The applications crossed. It seems to me sensible to treat the mother as the applicant in the proceedings and the father as the respondent. Procedural orders made by me require each party to file and serve any amended application or response upon which she/he relies by specific dates and the parties should take that opportunity to regularise their respective positions.

Recent history

1. It appears from the papers that until November 2014, the child lived week about with the mother and the father. From November 2014, the child necessarily saw less of the father because the father was living in Country Z but I cannot discern how regularly the father then spend time with the child, where or in what circumstances. 

2. In early August 2015 the mother and the child travelled to Country Z, temporarily, to see the father.  The father says that the purpose of the mother’s trip to Country Z with the child was so that she could enter a rehabilitation treatment program at an establishment situated in Country W.  The mother in her affidavit evidence refers to going to a “health retreat”.  In any event, the mother spent between one and two months at the establishment during which time the child was cared for in the father’s home in Country Z. I was informed by the child’s paternal grandfather that the paternal grandmother, Mrs C, was on hand in Country Z to assist the father for some of the time.

3. The mother returned to Country Z from Country W on or about 28 September 2015. She then agreed to further reside with the father in his home for approximately four weeks.  Her affidavit indicates that she considered this to be an extension of the temporary visit by the child and herself to see the father in Country Z.  She deposes that, once she agreed to extend their visit, the father started being controlling and aggressive to her and deprived her of her liberty in some respects. The father’s evidence is at odds with the mother’s evidence in this regard.

4. It appears to be common ground that, on or about 23 November 2015, the mother left or was excluded from the father’s home in Country Z. The child remained in the care of the father. The mother did not see the child until 10 December 2015. 

5. The mother deposes to having made repeated requests to see the child between 23 November 2015 and 10 December 2015.  From the many text messages attached or referred to in the affidavits there appears to have been a high degree of mutual mistrust between the parents.  Each was openly accusing the other of intending to disappear with the child.

6. The mother deposes that, through the services of mercenaries who are colloquially referred to as “recovery agents” in the parlance of international parental child abduction, she recovered the child on 10 December 2015.

7. The father confirms that the child was removed from his care, forcibly, at a public location on 10 December 2015.

8. Since 10 December 2015, the child has been in constant the care of his maternal grandmother, Mrs S.  They are in hiding in Country Z.  It is said that their places of hiding are arranged by the recovery agency who delivered the child to the mother. 

9. The father reported the incident of the child being snatched from him to the Country Z police.  Thereafter, the mother was located and detained by the Country Z police. The child was not recovered and remained in the care of the maternal grandmother.  The mother has since been released by the Country Z police but apparently she faces criminal charges arising from her role in the forcible removal of the child from the father.

Discussion

1. Today, neither the mother nor the father is at Court.  Both have been accessible to their legal practitioners by telephone.  I had the benefit of hearing from the child’s maternal grandmother and both of his paternal grandparents.

2. What I was required to decide today is how best to facilitate the child’s speedy return to Australia and what parenting arrangements should be put in place to operate between now and when the case will be heard by the Senior Registrar in late February 2016.

3. As with any parenting order my paramount consideration is the best interests of the child. 

4. It is not suggested by either party that it is not in the child’s best interests to know and be involved in the lives of both his parents. I proceed on the basis that each concedes that the child ought to have a meaningful relationship with the other parent.

5. I also take into account and, in fact, give greater weight to what is necessary to protect the child from any emotional or physical harm.

6. In this case the father alleges that the mother has an addiction to methamphetamines, in particular ICE, for which he says she had sought and was receiving treatment.  The mother alleges that the father has used ICE. She describes the father as controlling and as having treated her in a way which would fall within our definition of family violence. 

7. The parents already have shared parental responsibility. This is a hearing on discreet issues which reflect what the parties are unable to agree upon.

1. The legal practitioners have obtained instructions by telephone at a number of junctures throughout the day today.  The method by which the child will be brought home has now been formulated.  To the extent that some aspects were not a matter of consensus and agreement, I heard submissions from each lawyer, indicated my preliminary view and what orders I could make. Neither practitioner sought to be heard further.  I have pronounced orders which reflect the arrangements.

Interim parenting arrangements

1. The father will now return to Australia. The paternal grandparents will travel to Country Z to be on hand to bring the child back to Australia on an Airline X flight that departs on 1 January 2016. The maternal grandmother will deliver the child to the paternal grandparents at the airport at 10.30 am on 1 January 2016. The mother is not to attend the airport. The father will be back in Australia so he will not be at the airport either. The mother and the maternal grandmother are free to travel back to Australia whenever they wish to do so providing they are not on the same flight as the paternal grandparents and the child.

2. I will comment below about the media coverage of the parents’ actions within Country Z. For the time being and in order to avoid any exhibitionism or poor behaviour which could play well in the media but be of no benefit to the child, the parents are each restrained from travelling on the same flight as the child and from attending the airport from which the flight will leave.  There should be no protracted farewells as the maternal grandmother hands the child to the paternal grandparents.  The presence of an Australian consular official at the point of check-in would, I think, be a most effective means of de-escalating any conflict. I acknowledge that the parents’ emotions are running high at the moment and I suspect that all grandparents are mightily concerned about what is going to happen to the child.

3. Once back in Australia, the child will reside for the first 10 days with the father and, thereafter, on a week about basis with each parent pending further order of the court. After the child leaves Country Z, he will next be in the mother’s care, in Australia, at 12 noon on 11 January 2016.

4. Having regard to the evidence put before me, I am satisfied that the above arrangement is in the child’s best interests. However, if further important evidence comes to light, even the temporary interim arrangements can be changed if needs be on the application of a parent or an interested party.

Procedural matters and further evidence

1. The father has filed a Notice of Risk which constitutes a notification of sorts to Department of Health and Human Services (“DHHS”). DHHS will make a decision to become a party to these proceedings (rarely), provide a written response detailing its experience of the family or family members (probable) or not take any action but suggest that a subpoena directed to DHHS could contain information of interest to the court (also probable). 

2. There will be an independent children’s lawyer appointed to represent the child’s interests. I note that Ms Mary Lonergan of Victoria Legal Aid was the independent children’s lawyer in the proceedings which were finalised in 2013.

3. A family consultant in the employ of the court will interview the parents on

   
   

   1 February 2016 and interview and observe the child later.  These are non-privileged/reportable interviews, for the purposes of :

   •identifying  risk factors, including risks associated with family violence, abuse, mental health and substance alcohol and drug abuse

   •identifying the issues in dispute

   •identifying the potential for resolution/negotiation, and

   •identifying case management and referral options which may progress the matter.

   The family consultant may be able to assist the parents to reach agreement on some or all issues during the assessment process. In any event, the family consultant will report the outcomes to the Court in a memorandum which will be published by mid-February 2016. The purpose of the memorandum is to advise the court as to the current status of the dispute in relation to each issue and to make recommendations about the management of the case through the court process if the parties are unable to resolve their dispute. This assessment is not a full family report which may be ordered later and pursuant to
   section 62G(2).

4. The appointment at which the child meets with the family consultant may, at the discretion of the family consultant, also include a meeting between the independent children’s lawyer and the child.

5. Absent the matter coming back to court on the issue of the child’s school enrolment or on some other urgent application, the next hearing will be before Senior Registrar FitzGibbon on 29 February 2016. The Senior Registrar will determine any outstanding interim parenting disputes which the parents themselves cannot resolve.

Forewarned is forearmed

1. There are a few issues that I wish to address in relation to how the parents have, or may have, behaved recently. This is lest either of them feel surprised by the manner in which his or her conduct will be assessed by the court, as it inevitably will.

Publicity and media reports should cease

1. Apparently, there has been extensive media interest in Country Z arising out of the mother’s forcible recovery of the child and subsequent detention in Country Z.  In my 30 years odd experience in family law I have not seen a case in which media exposure of what one parent did to the other parent has benefitted any child whose whereabouts are known.   

2. Publicity about family law proceedings is not permitted in Australia.  It is contrary to our Act, in particular section 121 which provides that:-

   (1)      A person who publishes in a newspaper or periodical publication, by radio broadcast or television or by other electronic means, or otherwise disseminates to the public or to a section of the public by any means, any account of any proceedings, or of any part of any proceedings, under this Act that identifies:

   (a) a party to the proceedings;

   (b) a person who is related to, or associated with, a party to the proceedings or is, or is alleged to be, in any other way concerned in the matter to which the proceedings relate; or

   (c) a witness in the proceedings;

   is guilty of an offence punishable, upon conviction by imprisonment for a period not exceeding one year.

3. However, potential prosecutions under section 121 are not my main concern. The issue that I raise for consideration by the parents is somewhat different. It is, where publicity is sought by one or either parent for reasons which are not immediately identifiable as being the benefit of the child, that action carries within it a strong indication of self-centred behaviour of the type that is not conducive to, or consistent with, good parenting. Consequently, if the parents wish to conduct themselves appropriately once he or she returns to Australia, attention seeking behaviour - of the kind which is in the evidence in this case - must cease. That also applies to causing, permitting or allowing the publication of any details of this family in any form of media in another country.

4. Both parents will now have an opportunity to take stock and to reset their priorities. They should consider doing their best to put the unfortunate events of the last six weeks behind them. The parties should concentrate on the child’s return to a normal life in Australia. In particular, where he will go to school and what parenting arrangements should be put in place.  If this cannot be achieved, it is difficult to envisage how they will be able to share parental responsibility for the child into the future. 

Legal representation

1. At the moment both parents are legally represented.  Should that change, and a parent ceases to be legally represented for any reason, that parent still has the primary onus of preparing any documents or doing any things which the orders that I have made today require him or her to do.  A party’s failure to file a document or failure to comply with an order will not be excused merely because that party no longer has a solicitor acting for them. 

2. Legal representation in Australia is expensive; if there is the slightest doubt that a party can afford a lawyer on an ongoing basis, he or she should assume that they will act for themselves and ensure that they are in the position to prepare and file any documents required of them without the assistance of a lawyer. 

Father’s disinclination to withdraw support for the criminal prosecution of the mother in Country Z arising out of recovery of child

1. I asked Mr Ross, lawyer for the father, about the father’s position in relation to providing the greatest possible immunity for the mother from criminal prosecution arising out of the events in the last six weeks. 

2. I asked Mr Ross to obtain instructions about whether his client would agree to provide an undertaking to this Court, which is a solemn promise to this Court, to discontinue any criminal proceedings and/or to refuse to cooperate in the prosecution of any criminal proceedings by the giving of evidence. I stood the matter down to enable Mr Ross to speak to his client.  The father’s response was that he would not provide any such undertaking or provide any such assurance. 

3. The father’s response, conveyed through his lawyer was that he would not agree to withdraw any charges and he will not agree not to support any criminal proceedings of the mother. 

4. The response from the father was, as best I recall, “it is not necessary”.  That is cold comfort to the mother.  In fact it is fairly cold comfort to me as I reflect on the father’s responsibilities in relation to parenthood and his ability to co-parent with the mother for the benefit of the child. I make no findings about the father’s attitudes today. He may reflect upon his position and alter his view. Most importantly, I do not have the entire story so it would be quite unsafe to make any finding. Nonetheless, I struggle to see how a criminal prosecution of the mother, let alone any sanction or punishment of her in Country Z, can advance and promote the child’s best interests.

Enrolment at school in 2016

1. Some consideration has been given to the child attending a school.  The school year will commence in here prior to the parents having a hearing before the Senior Registrar and perhaps even prior to the interviews for the Parent and Children’s Issues Assessment. 

2. It is imperative in my view that the child has an orderly and pleasant start to school in 2016.  The parents really must try to reach some agreement about a school for him well prior to that date.  In doing so they should not lobby the child; they should not unduly influence him, in fact the child should regard this as a matter which is a decision which is to be made by his parents and not a decision for which he bears any responsibility to assuage either or both of his parents. 

3. In the event that the parents do not resolve which school the child should attend, I have reserved liberty to each parent and the independent children’s lawyer to make an application in relation to the selection of school and the orderly enrolment of the child in the school.  It will necessarily be a short hearing, probably at 9 am and confined to 30 or 40 minutes.

4. School enrolment is an issue to which I request the Independent Children’s Lawyer give priority as and when appointed.

Country Z law enforcement authorities

1. When these proceedings were first before Judge Jones in the Federal Circuit Court on 24 December 2015, she made a recovery order and provided that the child live with the father until further order. Following the parties’ submissions today, I have suspended those earlier provisions.

2. So that the law enforcement authorities in Country Z know of the parties’ new obligations, I have requested that a copy of this Order be transmitted by the Australian Federal Police to the police in Country Z.

3. I respectfully request that the Country Z authorities facilitate the quick return of the child and the mother and the maternal grandmother to Australia.

Australian High Commission in Country Z

1. Finally, but very importantly, I acknowledge that implementation of parts of this Order is predicated upon the cooperation of Australian consular officials at the time that the child checks in for the flight to Australia.  I made the Order without being able to ascertain whether the Australian High Commission in Country Z has the ability to assist as contemplated.

2. As this matter is before me today I am informed that the Australian Consulate Office in Country Z is closed and that no one can be contacted.

3. I made the Order on the basis that compliance and support by consular officials would be very much appreciated but, if that support is not possible, then the arrangements and my Order can be changed.  There is sufficient time between now and the child boarding the flight on New Year’s Day for the matter to be brought back to Court and, in that sense, I am envisaging sometime in the next 24 hours.

4. As I understand the situation, the mother says that the father retained her passport when she was forced to leave his home on 23 November 2015.  The father says he handed the mother’s passport to the police in Country Z on or after 10 December 2015.  The mother is most concerned that she not be prevented from returning to Australia as soon as possible by reason of not being able to produce her passport.  Accordingly, if the mother’s passport cannot be located, hopefully our High Commission can furnish the mother with sufficient travel documents to facilitate her travel back to Australia. 

5. Next, either the father or the High Commission Embassy has the child’s passport.  The child is to return to Australia in the next few days.  If the child’s passport is held by the Australian High Commission, I trust that it can be released at the point of check-in to facilitate the child’s flight home.  Come what may, the child’s return to Australia as soon as possible and in accordance with my Order, will, I hope, be facilitated. If the child’s passport cannot be located, presumably travel documents would suffice.

I certify that the preceding Fifty Eight (58) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 29 December 2015.

Associate: 

Date:  30 December 2015