Sharma and Sharma

[2014] FamCA 1058

FAMILY COURT OF AUSTRALIA

SHARMA & SHARMA [2014] FamCA 1058

FAMILY LAW – CHILDREN – With whom a child lives and spends time – where the father does not live in Australia.

APPLICANT: Ms Sharma

RESPONDENT: Mr Sharma

FILE NUMBER: BRC 8474 of 2013

DATE DELIVERED: 20 November 2014

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 20 November 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Dart

SOLICITOR FOR THE APPLICANT: Legal Aid Queensland

RESPONDENT: No appearance

Orders

IT IS ORDERED BY WAY OF FINAL ORDER

1. That the children B, born … 2001, M, born … 2004 and V, born … 2007 (“the children”) live with the mother.

2. That the mother have sole parental responsibility in respect of all major long-term issues for each of the children.

3. That the father shall not spend time or communicate with the children.

4. That the father is restrained and an injunction issue restraining the father from communicating with or contacting the children directly or indirectly.

5. That the father is restrained and an injunction issue restraining the father from harassing, stalking, molesting or coming into the immediate presence of the mother or the children.

6. That the father is restrained and an injunction issue restraining the father from entering or remaining in or within one hundred (100) metres of the residential or work address of the mother or the children’s school.

7. That the father and his servants and/or agents are hereby restrained and an injunction issue restraining them from removing or attempting to remove the children from the care of the mother.

8. That the father, Mr Sharma, born … 1976 be restrained either personally or by his servants and/or agents from removing or attempting to remove or causing or permitting the removal of the children, B, a female born … 2001, M, a male born … 2004 and V, a male born … 2007 from the Commonwealth of Australia.

9. It is requested that the Australian Federal Police give effect to the preceding order by placing the name of each child on the Family Law Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintaining each child’s name on the Watch List indefinitely.

10. That the mother is permitted to obtain passports or apply for a passport renewal for each child without the consent of the father and without requiring the father to execute any document necessary for such passport renewal or application.

11. That a Registrar of the Court is appointed pursuant to s106A(1) of the Family Law Act 1975 (Cth) to sign, in lieu of the father, any document necessary for each child to obtain a passport or have a passport reissued.

12. That the mother has liberty to provide a copy of the Order made today and the Reasons for Judgment delivered in support of such Order to the appropriate Indian Courts.

AND IT IS FURTHER ORDERED

1. All outstanding applications are otherwise dismissed and removed from the list of cases requiring determination.

AND IT IS DIRECTED

1. A copy of the Reasons for Judgment delivered today, once settled, shall be sent to each party by email transmission.

2. Any Application for a Recovery Order filed by the mother shall be listed urgently before the first available Judge.

NOTATION: 

A.The mother has liberty to remove the children from the Commonwealth of Australia for the purposes of overseas travel.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sharma & Sharma 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 BRISBANE

FILE NUMBER: BRC 8474 of 2013

Ms Sharma

Applicant

And

Mr Sharma

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. The speed with which the reasons in this matter are delivered reflect the Court's recognition of the importance of finality to the children of the proceedings, especially given the history of their removal from not only India, on occasion, but also from the primary care of their mother in the manner which can be ascertained from the chronology relied upon at the hearing by the mother and from the chronology of events which is apparent from a perusal of the affidavit material.

2. Given this, it is hoped that those hearing or reading these Reasons will excuse any infelicities of expression or inelegance of language and, instead, regard generously the reasons which follow - the reasons that support my conclusion that the children's best interests are met by an order which sees them continue to live with the mother in Australia. 

3. In determining that, the principles to be applied in cases in which parenting orders are sought are well-known to all.  As I have already recounted during discussion and interchange with Counsel who appeared on behalf of the mother, I have had regard to the principles outlined by the Full Court in cases such as Pascale & Oxley (2013) FamCA FC47, a decision of the Full Court, and the authorities to which the Court there referred.

4. The cases make it clear that, whereas here, the Court's jurisdiction is regularly invoked, the principles to be applied are those as in any other parenting case as provided for within the Act.  Consequently, I may, subject to s 61DA and s 65DAB and Division 6 of Part 7 of the Family Law Act 1975 (Cth), make such parenting order as I think proper. 

5. I must have regard to the objects of Part 7 of the Act and the principles which underpin those objects.  In deciding whether to make a particular parenting order I must regard the children's best interests as the paramount consideration, and the considerations to which regard must be had in determining what is in the children's best interests are those mandated by and contained within s 60CC of the Act.

6. In the case before me today the orders sought by the mother are as contained in the Case Information (number 3) document filed on her behalf on 12 November 2014.  Insofar as the orders sought by the father are concerned, they are contained within the document which is Exhibit 1 before me and, particularly, set out under the heading “Orders Seeking” on page 2 of that document.

7. In summary, the father seeks that the Court make an order that the mother return the children to India - that previous Orders of the Federal Circuit Court be set aside.  He also seeks to start communicating with the children on a regular basis with no restriction imposed upon his ability to speak with them nor on the ability of any of his unnamed representatives to do so.  The father also seeks that the children's passport be signed, or an application for a passport be signed by both of the parents. 

8. It is clear the children have been living in Australia since late January 2013.   They have previously lived in Australia with both of their parents for a period of time from about 2010 until 2012.  In early 2012, the mother and children returned to India; later the father returned to India.  After a separation and reconciliation, the parties finally separated in early October 2012. 

9. On 16 October 2012, the Family Court of Ahmedabad in India ordered that the mother have custody of the children and that the father be restrained from taking custody of them without permission of the Court.

10. On 5 January 2013, the same Court ordered that the father have visitation rights to the children each Sunday from 8.00 am to 8.00 pm with such time to be supervised by a male relative of the mother's choice. 

11. The chronology reveals that those two Orders - made in October 2012 and January 2013 - by the Indian Court are the only Orders made by an Indian Court whilst the children were living or in India.

12. After the Orders were made on 5 January 2013, the children spent time with the father (pursuant to that Order) on 6 and 13 January that year.  On 20 January 2013, during a period of time when the children were spending time with the father in the company of a male relative of the mother's choice, the male relative was threatened by two persons in the company of the father – he was threatened with a knife.  He was drugged, after which the children were removed from his presence and removed from the mother's care.

13. Toward late January 2013, the father took the children from India to Australia via Hong Kong.  The mother subsequently obtained Orders in India which required the father to produce the children to the Court in India.  He did not do so.

14. On 6 April 2013, whilst the father and children were in Australia, the father obtained Orders - in the absence of both himself and the mother - in the Civil Court at Bellary for the custody of the children.  It is apparent from a perusal of the relevant documents associated with that Order, that that Court proceeded on the erroneous basis that the children were then living with the father in India.

15. This is a factor which persuades me, in the circumstances of this case, that the father is a person who is unlikely to hesitate to act positively to either mislead or deceive a Court (wherever that Court might be sitting) in pursuit of orders favourable to him or supportive of his considerations about what is appropriate for the future parenting arrangements for the children.

16. I consider there can be no conclusion other than that the father was a party (in some way) to a positive deception of the Civil Court in Bellary and that he, through an absence of information on the very best analysis, permitted that Court to proceed erroneously on the basis that the children were within India and within jurisdiction.  It is also apparent from the material, that after that Order was made, the father continued to refuse to comply with Orders obtained by the mother in India for the return of the children to that country.

17. In about mid-September 2013, having endured a significant number of Court appearances in India designed to obtain the return of the children to that country and to her care in accordance with the Order made in October 2012, the mother travelled to Australia in an attempt to locate the children.

18. After undertaking actions which are set out in the affidavit material, the mother located the children in Australia.  Upon locating them, she filed an Application returnable in the Federal Circuit Court seeking a recovery order for the children on an ex parte basis.  When the matter came before Judge Cassidy, on 3 October 2013, her Honour made such an Order requiring the return of the children to the mother's care.

19. The Australian Federal Police executed this Order on about 4 October 2013 at which time the children were returned to their mother's care.  They had not seen her since 20 January 2013 - a result consequent on the father's deliberate actions in removing them from her custody in clear disregard for the terms of the Order made in India in October 2012 and further removing them from India itself and transporting them to Australia.

20. His actions in this regard demonstrate a complete inability to have proper regard to the likely impact upon the children of such an extended absence from their mother, the person who the Court in India in October 2012 recognised as being the parent who should have custody of the children.  I consider it open to me to conclude that this Order rested upon an acceptance of the mother's evidence – consistent with that outlined in her material before this Court - as to the primary nature of her care of the children from the time of their birth until they were removed from that custody by the father in mid-January 2013.

21. When the matter returned before Judge Cassidy on 23 October 2013, her Honour made further parenting orders including that the children live with the mother.  She restrained the father from removing the children from the mother’s care and restrained both parties from removing the children from Australia.  It appears that the father had, by that stage, perhaps, left Australia - although I am unclear as to the chronology surrounding his departure from this country.  What is clear, however, is that he did not appear before Judge Cassidy on that day.

22. The matter has since been the subject of a number of Directions Hearings at which the father has not appeared on occasion.  I do not intend in these Reasons to canvass again the matters I have relied upon for the determination to proceed to hear the matter today in the father's absence. Recourse to the transcript or recording of this hearing will make those matters clear, and I incorporate them, where necessary, into these Reasons.

23. It is clear, though, on all of the material that the children have, since their return to the mother's care in early October 2013, remained within her primary care.  The material she relies upon establishes quite clearly that they are settled in their current environment, are doing well educationally and socially and, with the assistance of therapeutic counselling, have commenced a process of dealing with matters to which they were exposed during the cohabitation of their parents.

24. I note that, whilst the father filed affidavit material in September 2014, (being affidavit material following upon the mother's affidavit of June 2014) he does not take issue factually with her assertions as to his behaviour during their relationship.  Whilst he seeks to place a context around his decision to remove the children in clear contravention of the October 2012 Indian Court Order - from not only the mother, but from India itself - he does not take the opportunity to deny any of her allegations of his inappropriate and abusive behaviour toward herself and the children during the period of cohabitation.

25. In such a circumstance, I consider it well open to me to accept the mother's evidence – and I do - as set out in her affidavit material where she outlines the father's behaviour toward her and the children.

26. It is also clear, should it be thought necessary that I record it, that an Order made on 24 April of 2014 in the High Court of Gujarat at Ahmedabad, (which may be found as Annexure F to the mother's affidavit filed 12 November 2014) makes it clear that that Court determined that, as proceedings were on foot in this Court, it was not appropriate that further orders be made by that Court in relation to the children - particularly because, as their Honours record, the children were not at that time within, to use their term, "the territory of India".

27. It is against that background and in that context, then, that I must consider, having proper regard to the considerations set out in s 60CC of the Act, and determine the orders which are in the children's best interests.  I am well persuaded on the evidence that the mother has provided to the children a level of care which has been beneficial to them.  There could be no doubt that there is a positive benefit to the children of having a meaningful relationship with her. 

28. I consider that she is the parent who, on the evidence, most likely discharged the majority of the parenting responsibilities and provided the majority of the children's day to day care. There could be no conclusion other than that she has continued to discharge these duties and fulfil these obligations in the time since the children were returned to her in early October last year. 

29. The evidence before the Court establishes that the mother has discharged those obligations and responsibilities admirably in the circumstances.  I have no doubt in concluding that the children have had the benefit of a return to her primary care and the benefit of the stability that such return is likely to have caused to them.

30. It is clear on the authorities that the Court should not presume there is a benefit to any child of having a meaningful relationship with both of that child's parents.  It is a question of fact, to be determined on the evidence, as to whether there is, in fact, a benefit to any child of having a meaningful relationship with both of that child's parents.

31. As indicated, I have concluded that there could be no doubt that there is a benefit to the children of having a meaningful relationship with their mother.  Her devotion to the children was expressed by her determination - in the face of significant difficulty - to travel to Australia for the purpose of ensuring their return to her.  Little more needs to be said in such a context. 

32. However, there seem to me to be a number of matters requiring close assessment when a similar consideration of whether there is a benefit to the children of having a meaningful relationship with the father is undertaken.

33. It is submitted on behalf of the mother, (as set out in the first page of the Summary of Argument filed on her behalf on 19 November 2014) that it would be in the children's best interests if they were able to have a relationship with their father.  Such a statement, I consider, reflects nothing more than an appropriate acceptance of the statutory imperatives placed upon this Court and, thus, upon parents appearing to prosecute cases within this Court to deal with and address the statutory considerations.

34. It could not be thought other than that, in an ideal circumstance - or even those circumstances which are less than ideal - for many children, there is a benefit to them of having a meaningful relationship with both of their parents.  In the present case, however, the question must be asked:  what is the benefit to these children of the opportunity to have a meaningful relationship with their father, given his deliberate conduct in removing them (contrary to Orders) from the primary care of their primary care provider and, through that conduct, causing them to be removed from and have no opportunity to interact with that person at all for a significant period of time?  The answer is more problematic.

35. I consider that, in addition to this conduct on the part of the father - which clearly is relevant to an assessment of the benefit to the children of a meaningful relationship with him, a parent so prepared to act in a way to cut them off from the mother - the evidence further establishes that the father has demonstrated, on a repeated basis, a willingness to fail to comply with orders made by Courts where the terms of those orders are not as he would have them be.  That, it seems to me, is an additional matter to be taken into account in an assessment of the benefit to these children in this case of the opportunity to have a meaningful relationship with the father.

36. I am prepared to conclude that, if the father's behaviour was sufficiently changed such that the Court could be persuaded that his actions in removing the children from India were restricted to what might be termed “one-off actions” or “ill-judged behaviour undertaken on a spur of the moment” a conclusion might more readily be drawn that there is a significant benefit to the children of the opportunity to have a meaningful relationship with him.

37. The difficulty in arriving at such a conclusion arises because of the father's continued conduct - including the terms of the orders he seeks before this Court.  It is clear, it seems to me, that the father has continued to embark upon a course of conduct designed to have the children returned to India in circumstances where I consider it highly likely that, if they were to do so, there would be a repeat of his previous behaviour in removing them from their mother's primary care.

38. There is nothing in the father's affidavit material to suggest that he has reflected, in any way, upon the inappropriateness of his unilateral conduct in removing the children from the mother.  There is nothing in his material to persuade me that there has been any change of attitude at all.  In fact, I am persuaded on his material that he continues to seek to justify his behaviour (deliberately undertaken in the face of existing Orders) and further, continued to seek to obtain orders from other Courts in India in circumstances where I consider it more likely than not that he either failed deliberately to inform such Courts of the existence of other orders, or acted recklessly and failed to ensure that the Courts were made aware of other proceedings in a proper and appropriate manner.

1. Such deliberate conduct causes this Court concern in terms of its assessment of the likelihood of the father's behaviour changing in the period from October 2013 until the present;  thus, the benefit to the children of the opportunity of having a meaningful relationship with both of their parents is a tentative conclusion. 

2. The Court must, of course, consider the need to protect the children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.

3. I accept the mother's evidence as contained in her affidavit material as to the father's behaviour toward her and the children during the period of cohabitation.  I accept the submission made by Counsel on behalf of the mother to the effect that the father's actions in removing the children from their primary carer and from India and transporting them to Australia (in circumstances where they were not afforded an opportunity to have any interaction, communication or contact with their mother until their recovery in early October 2013) amount to a deliberate act of abuse.  It is, in my view, an action which can only have caused the children significant distress, upset, destabilisation and harm.

4. The fact that the father maintained the position in Australia for the period of time that he did is a further feature, it seems to me, in concluding that he acted quite deliberately.  It is not, for example, a case where, having acted rashly and spontaneously, a party later - upon reflection - reconsiders their actions and takes further action to ameliorate the consequences of them.

5. It is quite clear that the children would have remained with the father – without the opportunity to communicate or spend time with the mother - unless she had taken the action that she did.  There is nothing to suggest that the father paused, at any time, to reflect upon the consequences for the children of his deliberate conduct - this is clearly relevant to a number of the s 60CC considerations.

6. I am persuaded that the presumption of equal shared parental responsibility does not apply in this case:  given my conclusions and acceptance of the mother's evidence and, particularly, my conclusions as to the consequence of the father's own conduct in removing the children from India and their mother.  Even if I am wrong in this conclusion, it could not be thought otherwise than to be in the children's best interests that the presumption does not apply.

7. The history of the matter makes it inevitable that there is a complete absence of trust as between the parents.  I accept the mother's evidence (particularly in circumstances where it is not contradicted by any sworn evidence from the father) as to his actions toward her:  these included drugging her on an occasion.  I accept that, in a sense he repeated that behaviour by either drugging or being involved in the drugging of the supervisor from whom the children were removed in January 2013.  Again, surely, little more needs to be said in relation to a consideration of the absence of trust as between the parents in such a circumstance.

8. I am well satisfied that, given the fact the children have been in their mother's primary care since their return to in October 2013, they (more likely than not) have a good and well-established relationship with her.  She has clearly sought to attend to all of their needs, including arranging for them to be involved in a therapeutic counselling process.  A perusal of the reports produced by the school at which the children attend makes it clear also that the children have benefited significantly from being in her care and from receiving the care she has provided to them.

9. Exhibit 1 makes it clear that, at this stage, the father cannot come to Australia as a consequence of the existence of notifications issued by Interpol.  I can only assume that such notifications arise out of the events of 20 January 2013.  This has obvious consequences for the children's opportunity to have communication and time with the father.

10. It will be apparent from a consideration of the interaction between the Court and Counsel for the mother that I have given serious consideration to making orders for supervised time as between the children and their father in the event that he were to travel to Australia.  In considering the issue of the time that it is in the children’s best interests to spend with the father, I must, of course, take into account the submission made by Counsel that time with him would place them at an unacceptable risk.

11. The authorities, commencing with M & M and the decisions which follow, make it clear that the Court must, in essence, pose about itself a series of questions.  Whilst there has been much judicial discussion the principles in M & M, it cannot be forgotten that the question really comes down to whether there is an unacceptable risk to the children of a particular course or order proposed by a particular party in the particular circumstances in which the particular children and parents find themselves.

12. Thus, in order to consider the father's competing proposal that the children be returned to India - to spend time with him, or perhaps, live with him – I need to ask myself rhetorically: what is the risk to the children of unsupervised time with the father?  The answer simply and obviously is that such time would risk a repeat of the past abduction of the children and the consequences for them and their functioning and relationship with their mother.

13. There is no way in which such a risk is one that could be termed “acceptable” given the significant consequences that would follow for the children from such risk being crystalised.  Rhetorically then:  what is the risk to the children of supervised time at a Contact Centre if the father is in Australia?  Whilst there are potential - and I place it no higher than that for the reasons I have already expressed - benefits to the children of having a safe opportunity to spend time with the father, even supervision at a Contact Centre has a number of risks.  These risks arise in the particular circumstances of this case given the father's deliberate conduct.

14. It is clear that the father has exhibited and demonstrated a willingness to act to obtain custody of the children by drugging an adult charged with overseeing his time with them.  That action, of itself, places this case and the circumstances of this case in a particular context.  It, I consider, distinguishes it from many cases dealt with by this Court where the imposition of supervision by a commercial, (if I might use that term) supervisor is sufficient to ameliorate the identified risk posed by a parent to a child.  Here, the father has demonstrated a willingness to act positively to cause another adult to be incapable of discharging the function of supervision.

15. Whilst it might arguably be said that such conduct would be difficult to repeat in circumstances where supervision took place within premises specifically designed to facilitate that time, there is, I think, much in the submission made by Counsel for the mother to the effect that it is the common practice of Contact Centres not to act to prevent a particular parent from leaving the Centre with children.

16. It seems to me that the risk to the children of spending time with the father supervised at a Contact Centre remains one which is unacceptable.  I arrive at that conclusion clearly cognisant of the consequences for the children of such a determination and the consequences for their opportunity to maintain and have a meaningful relationship with the father.

17. Whilst those consequences are significant - particularly given the children’s respective ages at about 13, 10 and seven years and that these are final orders intended finally (as much as finality can attend parenting matters) to dispose of the proceedings and to put in place certain orders for the children - I consider that no other conclusion is open to me after reflection and a further consideration of the material. 

18. I cannot be satisfied that the father would not act in a similar way to undermine a process of supervision.  I cannot be satisfied that the father would not use all of the matters and avenues open to him to remove the children again from their mother and to impose upon them again the consequence of significant disruption and upset. 

19. For these Reasons, whilst it is a significant conclusion, I am satisfied that even time supervised at a Contact Centre is one which poses, in the circumstances at present, an unacceptable risk to these children. 

20. I ask rhetorically, then: what, if any, is the risk to the children of telephone communication with the father if such communication is supervised by the mother.  The risk identified by Counsel for the mother might roughly be summarised as encompassing a risk of destabilisation of the children, the potential that they are exposed to views of their mother which are derogatory and undermining of her as a person and as a parent, the risk that they will be re-exposed to, or in some way influenced to, think about past behaviours of the father toward the mother which took place during the relationship and in respect of which they have received some therapeutic assistance and support.

21. I think a further risk may be that they exposed to a parent, the mother, who herself, as a consequence of such telephone communication and the necessity for her involvement in it, may be called upon to be re-exposed to the consequences and the recollections of the father's past behaviour toward her.

22. As I have already said, I am well satisfied that the mother has, at this point in time, been able to put into effect parenting arrangements and supports for the children which have seen them flourish.  She has supported them in their transition back to her primary care.  She has, no doubt, assisted them to deal with the very significant changes for them of such a return. 

23. She has also had to deal with their expressions of view (as she recounts in her affidavit material) upon their return to her.  Those comments - as set out in her affidavit - reflect attitudes which are undermining and demeaning of her as a person and as a parent.  Exposure of the children to such a view is unlikely to be beneficial to them.  It is I consider more likely than not to cause them significant upset and confusion. 

24. Further, given the father's demonstrated ability to obtain orders in a court in India and his clear willingness, therefore, to act in any manner whatsoever that is consistent with, or beneficial to, his attempts to obtain orders he, no doubt, sees as justified, appropriate and in the children's best interests, I cannot discount the possibility that, through telephone communication, he would be able to obtain from the children (in a manner not necessarily able to be prevented by the mother) sufficient details as to their whereabouts, school and location as to permit him to identify that area: there is, therefore, the possibility, that he might take steps to repeat the actions of January 2013.

25. Additionally, in considering the issue of supervised telephone communication, I have returned to the question I posed at the commencement of these Reasons:  namely, what is the benefit to the children of a meaningful relationship with a parent who is prepared to inflict upon them the harm which flowed from a deliberate decision to remove them from their mother and to retain them in Australia without the opportunity to interact with her?  Whatever benefit to the children must, I consider, be regarded as minimal. 

26. In such a circumstance, then, the risk to their stability, functioning and to the stability and functioning of their mother as their primary care provider and to their continued residence with her outweighs the minimal benefit I conclude they would obtain from the opportunity to have telephone communication with their father on a supervised basis.  I am not persuaded that there is sufficient benefit to the children to outweigh the risks and the harm I have identified in these Reasons.

27. I have considered, as I must - given the children's ages - the consequences for them of orders which do not provide for any opportunity for them to have time or communication with the father.  My balancing of the factors, the risks and the likely impact upon their functioning and that of the primary caregiver, (their mother) persuades me that the benefits which are likely to be gained by the children from any such communication are not such as to outweigh the risks to them.  For these Reasons in relation, then, to telephone communication, I am not persuaded that such an order is one which is in the children's best interests.

28. In so far as they are matters to which I have not already referred, I accept the submissions contained within the Summary of Argument document filed on behalf of the mother on 19 November 2014.  I reach findings consistent with those submissions.  As I have already said, there could be no conclusion other than, it seems to me, one that it is in the children's best interests that they live in Australia with their mother. 

29. The absence of the parent’s ability to communicate makes it abundantly clear that the only sensible order, and the only order which could be thought to be in the children's best interests, in relation to the issue of parental responsibility, is one which would see the mother afforded sole parental responsibility for major long-terms issues in relation to the children. 

30. The father's actions in removing the children and, importantly continuing their retention within Australia as he did, provides a further basis for a conclusion that orders which restrain him from communicating or contacting the children directly and from harassing, stalking, molesting or coming into the immediate presence of the mother and the children and that restrain him from entering or remaining within 100 metres of the mother's residence or work address or the children's school are orders which are appropriate and in the children's best interests.  The father's deliberate actions really leave no other conclusion. 

31. The risk to the children, as I have said, of coming into contact with him cannot be underestimated and must be guarded against.  Clearly, the father should, by himself personally and/or his agents be restrained from attempting to remove or remove the children from the mother again.  No other conclusion seems to be me to be open on the evidence. 

32. It is the submission of Counsel for the mother that there should be an Airport Watch Order preventing the father from removing the children from the Commonwealth of Australia.

33. The Court has, as a matter of practice it seems, embarked upon the making of orders in terms limited to a duration of no longer than two years without further application.  This case differs. 

34. It is clear that an order restraining the father from removing the children from Australia should be made on a permanent basis.  It is undesirable that the mother be put to the expense - and that the Court be put to the consequence of such an application – if such an order is limited in its operation to a period of no longer than two years.  I consider that this circumstance and the circumstances of this case warrant the making of an order on an indefinite basis, without the requirement for the mother to return.  An order will issue to that effect.

35. I am not persuaded, however, to make a number of the other orders sought on behalf of the mother as set out in attachment A to the Case Information (number 3) filed 12 November 2014.  I do not intend to repeat the reasons for my reluctance to make such an order - such reluctance finds expression in the discourse between the Court and Counsel during the course of her submissions.

36. I do not intend, therefore, to make orders in terms of Clauses 9, 10, 11, 12, 13, 15 of the Case Information (number 3) document.  I note, for the record, that Counsel for the mother quite properly did not press the making of an order in terms of Clause 14 of that document.

37. An order will also issue in relation to the mother being permitted to obtain passports or passport renewals for the children without the father's consent and without the necessity that he sign any document necessary to facilitate such passport issuing. 

38. In addition, an order will issue authorising a Registrar of this Court to sign any document in the father's stead should that document be necessary for the mother to obtain a passport or renewal of the passport for the children - an order in the standard terms in relation to this will issue.

39. For the reasons I have expressed, therefore, I consider that orders which are in the children's best interests are orders in the terms pronounced.

I certify that the preceding seventy-seven (77) paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hogan delivered on 20 November 2014.

Associate:    

Date:    20 November 2014