Schott and Schott

[2008] FamCA 495

FAMILY COURT OF AUSTRALIA

SCHOTT & SCHOTT [2008] FamCA 495

FAMILY LAW – ORDERS – Restraining – urgent orders sought in child matter – Lack of facts and evidence – Short term interim order.

APPLICANT: Mr Schott

RESPONDENT: Ms Schott

FILE NUMBER: MLC 5784 of 2008

DATE DELIVERED: 26 June 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Young J

HEARING DATE: 26 June 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr G. F. Holmes

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

Orders

IT IS ORDERED EX-PARTE

1. That the further hearing of the application for interim and final orders, issued without notice to the wife this day as to paragraphs 5 and 8 only, be adjourned to the Senior Registrar’s Duty List for hearing on 7 July 2008 at 9.45 a.m.

2. That the extempore reasons for judgment on this day be transcribed and be made available to all parties and be placed on the court file.

3. That until 7 July 2008 the wife born … July 1971 her servants and/or agents be and are each hereby restrained from removing or attempting to remove or causing or permitting the removal or attempted removal of the child … (female) born … September 2001 from the Commonwealth of Australia and IT IS REQUESTED that the Australian Federal Police give effect to 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 said child’s name on the Watch List until 7 July 2008 or otherwise its removal by court order.

4. That as soon as practicable the solicitor for the husband serve a sealed copy of this order upon the AFP Operations Coordination Centre, and IT IS REQUESTED that the Australian Federal Police give force and effect to this order.

5. That a copy of this order be faxed immediately to the AFP Operations Coordination Centre by the Melbourne Registry of the Family Court of Australia.

6. That the wife be forthwith served with the following documents:

   (a)       the application for interim and final orders filed 26 June 2008;

   (b)       the husband’s affidavit filed 26 June 2008; and

   (c)       a sealed copy of these orders.

7. That an affidavit of service of all such documents upon the wife be thereafter forthwith filed by the husband’s solicitors.

8. That liberty to apply on short notice to the wife be reserved for any appropriate variation or amendment, or otherwise the discharge, of these orders and if so the wife must file and serve proper documentation in that regard.

9. That general liberty to the husband be reserved to apply as he may be so advised.

10. That all times be otherwise abridged to allow the proceedings contained in paragraphs 5 and 8 of the husband’s applications to be heard this day.

IT IS NOTED that publication of this judgment under the pseudonym Schott & Schott is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 5784 of 2008

MR SCHOTT

Applicant

And

MS SCHOTT

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. The matter of Schott is before me on an urgent ex-parte basis in the urgent judicial duty list.  The application was issued without notice this morning and abridged with the approval of a Registrar as to paragraphs 5 and 8 only of the orders sought in the application.  Mr Holmes of counsel appears for the husband who resides in India and is not able to come to Australia for this hearing.  Aside from his application for both final and interim orders he has filed an affidavit which was sworn before an Advocate and Notary in India on 25 June - that is yesterday.

2. The husband lives in India.  He is an executive in a construction company.  He and his wife were married in January 1995, and separated when the wife and child left the home in April 2006.  The child is almost seven years of age.  She was born in September 2001.  There were proceedings instituted in the court in India on child and parenting issues and the husband was the respondent in that original case.  His evidence deposes to the fact that the child went missing and he believed that she was somewhere in India, perhaps in Bangalore. 

3. Ultimately it transpired that the wife had undergone some form of interview and had organised employment with Australia and seemingly was assisted with an Australian 457 visa.  The wife and child finally left India in or about January 2007 and I accept that that was seemingly without the knowledge and consent of the husband.  On the basis of paragraph 10 of his affidavit there may be a case to investigate that the wife forged his signature to the visa application permitting their daughter to leave India.  On this material I cannot make any concluded finding and I understand the husband does not have any physical possession of those alleged forged documents.

4. The matters that the husband deposed to in his affidavit do identify that he now knows where the wife is working.  It would seem that she was sponsored to Australia, perhaps by her current employer, and the husband deposes in paragraph 14 of the wife's employment, and the address of such employment.  Indeed paragraph 14 is significant because it highlights not only a permanent work address, but the limited action that the husband took in August 2007 and then again in January 2008 with no other follow up actions.   In the context of that paragraph it is somewhat difficult to understand why this matter was treated with such urgency with times being abridged and the matter put before the court on an ex parte basis.

5. What is not in the affidavit but what Mr Holmes advised me from the bar table was that his instructing solicitor this morning attended at an office of the wife's employer, located near to the court and confirmed that she is an employee working in Melbourne.  Whether the wife is now alerted to that inquiry or otherwise I do not know.  I have no explanation as to why for the past 10 months the husband has not progressed the matter knowing where his wife was working and it would be a reasonable assumption to make that his daughter is therefore in Melbourne and living with her mother.

6. The application before me seeks many and varied orders all geared towards an urgent hearing. I would not contemplate making any order that the child live with the husband on the current facts. A recovery order is sought and I would regard that as wholly inappropriate. Likewise a location order pursuant to section 67N of the Family Law Act 1975 is sought, and information is sought to be obtained from not just the wife's employer, but various state and Commonwealth departments including the Education Department, the Health Department, the Department of Immigration and Citizenship and the Department of Social Security. I regard all of those applications as unnecessary in view of the fact that it is known where the wife is and has been working presumably since her arrival in Australia.

7. I am somewhat mindful to dismiss paragraph 8, but I have been persuaded by Mr Holmes to leave it on foot pending the adjourned hearing date and there may be some information necessary to obtain the residential address of the wife.  I am of course mindful but it is outside of my current scope of hearing that such a location order or subpoena to the Department of Immigration may impact upon the wife's current visa and/or her application to remain in the country.  As I emphasise that is not a primary concern and I make no other observation of that fact.  The central issue before me as I evaluate the evidence is whether any order should be made restraining the child from leaving the Commonwealth of Australia.

8. I did express a very real concern and clear reluctance to make such an order.  On balance and largely because of the manner in which the wife came to Australia and the lack of fostering any relationship between father and daughter and to ensure that the child remains within the jurisdiction pending the adjourned hearing, I will cautiously make that order until the adjourned date.  I intend to refer all aspects of this matter to the Senior Registrar and fix the matter in his list on 7 July 2008.

9. I have raised the issue of the application of the Hague Convention.  I am advised by Mr Holmes that India is now a signatory to the convention.  I am however further advised that there is no Central Authority yet established within India.  It is submitted to the court that discussions with relevant Authorities show that they are not able to and do not deal with any central authority in India, and therefore the Australian authorities cannot be requested to take action on behalf of the husband.  That does seem somewhat strange and an anomaly but that is for appropriate investigation hereafter.

10. There are various other orders sought in the application which I would now regard as either premature or inappropriate.  I am therefore going to make a limited order as outlined and require appropriate service, and thereafter the matter can be back before the court.  I will have these brief reasons for judgment transcribed, placed upon the court file and they will be available to be perused by both parties and their respective legal advisers and by the court.  My concern as to the current evidence before me and the abrupt manner in which the application has been brought is clearly highlighted, but then again I have regard to proper procedure and what may ultimately be found to be in  the best interests of the child.  By that I mean the re-establishment, if appropriate, of a father-daughter relationship and having the circumstances in place which may facilitate appropriate orders hereafter being made.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Young

Acting Associate: 

Date:  1 July 2008