Shiva and Savastri

[2016] FamCA 188

FAMILY COURT OF AUSTRALIA

SHIVA & SAVASTRI [2016] FamCA 188

FAMILY LAW – CHILDREN – Where children’s names placed on Airport Watch List – Where order made for children’s passport’s to be held by the Court pending further order – Where order for made for such of the children that are in Australia to spend time with the father pending further order.

APPLICANT: Mr Shiva

RESPONDENT: Ms Savastri

FILE NUMBER: (P)MLC 1247 of 2016

DATE DELIVERED: 30 March 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bryant CJ

HEARING DATE: 17 March 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Mr Gardiner

SOLICITOR FOR THE RESPONDENT: Rayner Song Family Lawyers

Orders

UNTIL FURTHER ORDER IT IS ORDERED

1. That both the husband and the wife be restrained by themselves, their servants and/or their agents from removing the children, B, born … 2014 and C, born … 2015 (“the children”), or either of them from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to the preceding Order by placing the names of the said children on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watch List for the period specified in Paragraph 1 and in default for a period of two years from the date of these orders.

2. That upon expiration of the specified or default period referred to and subject to any order of a court of competent jurisdiction, the Australia Federal Police will remove the children’s names from the Watch List NOTING THAT if either party seeks that the children’s names remain on the Watch List for a period beyond the two year period, that party must file and serve an application and an affidavit setting out the evidence to support such application.

3. That as soon as practicable the husband serve a sealed copy of this order upon the AFP Operations Coordination Centre, GPO Box 401 Canberra ACT 2601, and IT IS REQUESTED that the Australian Federal Police give force and effect to this order.

4. 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.

5. That the wife deliver to the Registrar of the Family Court of Australia at the Melbourne Registry the passport for the child, C, to be held pending further order within 48 hours of this order and, upon the return of the child, B, to the Commonwealth of Australia, that child's passport be delivered within 48 hours of the return upon the same terms.

6. That the children, or such of them that are in Australia, spend time with the father at a play centre, the location of which is to be nominated by the wife within 24 hours and the husband then notified, each Sunday from 2:00pm to 4:00pm, commencing Sunday 20 March 2016.

7. That all applications otherwise be adjourned to the Senior Registrar's Duty List on 21 April 2016 at 10:00am.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Shiva & Savastri 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: (P)MLC 1247  of 2016

Mr Shiva

Applicant

And

Ms Savastri

Respondent

REASONS FOR JUDGMENT

1. This matter commenced with an initiating application filed by the father on 17 February 2016. His application sought both final and interim parenting orders in relation to the two children of the marriage, B born in 2014 (aged 18 months) and C born in 2015 (aged nearly 5 months).

2. The husband sought an urgent listing on an ex parte basis which was not granted and the matter was instead listed on 17 March 2016 in the duty list before me. However, the orders sought and the facts deposed to by the husband in support of that urgent listing give context to the issues which came before me.

3. The husband sought a number of orders including:

   ·a recovery order to find and recover both children;

   ·an order to prohibit the mother from removing them from Australia;

   ·an order that the Australian Federal Police inform the father should the mother enter Australia;

   ·a restraint upon the mother from removing the children from Australia and the placement of their names on the Airport Watch List;

   ·orders in relation to the urgent sale of two properties, one in Suburb I and the other in Reservoir; and

   ·orders which restrained the wife from dealing with monies to her credit in the F Bank.

4. In support of those urgent orders the husband deposed to the fact that he is 32 years of age, was born in Country D and came to Australia in 2007. The husband said he is a permanent resident and his application for citizenship was approved in January 2016. The wife is 29 years of age and the parties were married in Country D in 2011 in a traditional religious ceremony solemnized with the consent of both parents.

5. Since their marriage the parties have had two children, referred to in [1] hereof.

6. Both parties were employed at the time of their meeting and at the time of the hearing before me, the husband had a position at E School and the wife has employment with the F Bank.

7. The husband deposes to several overseas trips by the parties, including Country G and Country H to stay with the wife’s parents, the wife’s father being a member of the Country D diplomatic service and living in those locations on postings. Relevant to these proceedings, at the invitation of the parties upon the wife discovering she was pregnant with the parties’ second child, the wife’s parents agreed to come to Australia for the birth of that child. As the husband’s brother was to marry in Country D, he asserts it was agreed that the parties, the children and the wife’s parents would all return to Country D on 27 November 2015 to attend his brother’s wedding and they booked tickets accordingly. 

8. The wife’s parents lived with them while they were in Australia. The husband deposes to tensions arising in the household shortly after the wife’s parents moved in with them and asserts interference by the wife’s father.

9. The husband asserts the wife’s father “became increasingly critical of him and made his views known to” the wife. During the period the wife’s parents were staying, the parties sought and located a property at I Street, Suburb I (“the Suburb I property”) that they wanted to purchase. A contract was signed and settlement was to take place on 6 November 2015. The husband asserts that there was maintenance to be done on the property so they decided to move in on 14 November 2015. The husband asserts that following settlement, and having moved the household possessions to the Suburb I property, the wife’s parents refused to leave the property the parties had been renting but as a result of settlement he had to remove furniture from the rented premises and hand over the keys. He says as a result of their reluctance to move to Suburb I, he made arrangements for the wife and her parents to move to a friend’s home while the friend was away pending the move to Suburb I.

10. The husband deposes to a deterioration in his relationship with the wife’s parents over the next week or so. The husband deposes to the fact that on 23 November 2015 he endeavoured to log into the wife’s bank account which they used as their primary account and into which his salary was transferred. When the husband finally obtained the log in details he noticed a transaction under the name “J Travels”. The wife said this was for the booking for travel to Country D on 27 November 2015. The following day, 24 November 2015, the husband asserts that he purchased a cake and flowers to celebrate the one month anniversary of C’s birth but was unable to contact the wife. The friend in whose home the wife and her parents were staying told the husband the house was locked and could hear no sounds. The husband then contacted J Travels and discovered that the wife and her parents had travelled to Country D on 24 November 2015 with the children and had changed their flights without reference to the husband.

11. The husband asked his parents in Country D to go to the airport to meet the family on arrival. He asserts that the wife and her parents were clearly disconcerted by the presence of the husband’s family and left the airport immediately.

12. The husband travelled to Country D on 25 November 2015 and asserts that while he was in Country D the wife’s parents would not permit him to speak to her, so that he was unable to make any contact with her and accordingly, with the children on his arrival.

13. On 10 December 2015, and while he was still in Country D,  the husband asserts the wife’s father contacted his parents setting up a meeting between the parents, but on the condition that the husband did not attend. The husband’s parents attended the meeting with the wife’s parents and the wife’s uncle. Neither the wife nor the children were present.

14. The husband says that he was told that number of allegations about his behaviour to the wife were made. The husband asserts that demands were made for money, despite the fact that there was more than $19,000 in the wife’s account.

15. The husband then asserts that on 26 November 2015 the wife made a complaint to the police at City K seeking protection and a copy of that complaint is annexed to his affidavit filed 17 February 2016. The complaints, which I do not need to detail, relate to complaints about the husband’s treatment of the wife in a number of respects during the marriage but concludes with the words:

    [Mr Shiva] is very canny and today he has updated his profile and cover pictures on Facebook with family photographs to show our common friends and family how much he cares about me and my kids.

    I beg and request the police authorities in [City K] to take appropriate legal action against [Mr Shiva] and his family (keeping in view the incident at the airport on the night of 24/11/2014). Please provide me with all kinds of protection.

16. Despite the foregoing it concludes by saying:

    I do not want any action at the moment and this letter is for your information only.

17. Finally, the husband asserts that he met the wife on 20 December 2015 for the first time since she left Australia at a meeting at her parents’ home at which both the wife’s and the husband’s parents were also present. The children, the husband asserts, were not present. He asserts that the wife made  a number of allegations against him, which he denies. He asserts that she told him that she required that he pay her $165,000 and did not wish to see him again and that she said she “will make sure that [he] will never see the children”. The father annexes to his affidavit a copy of a note which he says is in the wife’s handwriting and is a calculation of the amount she sought.

18. The husband asserts that since that date the wife’s parents continued demanding money of both him and his parents and making threats which included a threat that they would not let him return to Australia if the money was not paid.

19. The husband asserts that he was concerned about these threats and brought forward his return flight and left Country D on 23 December 2015. The husband asserts that on 30 December 2015 the wife made a further police complaint against him in Country D in relation to issues involving dowry and claiming money spent on their wedding. He has annexed to his affidavit a copy of a document which he asserts is from the wife which says:

    As I do not want to have any relationship with [Mr Shiva], I request the authorities to help me in getting me MY MONEY from [Mr Shiva].

20. The letter also details complaints about the husband’s behaviour which the wife says the husband has admitted and which he denies. The complaints are womanising, gambling, ill treatment of the wife, her parents and the two children. The wife also alleged that the husband had “withdrawn money from all accounts and also changed the passwords, leaving [her] penniless”.

21. The letter concluded by saying:

    I would also like to add that [Mr Shiva] is returning to Australia on January 4, 2016 and request the authorities to take prompt action before he leaves [Country D].

22. The husband asserts that the wife’s parents have continued to demand money from his parents in Country D and that he discovered on 5 January 2016 that the wife  had lodged a police complaint against him in Country D seeking the recovery of monies that had been spent on the wedding which, he asserts, relates to the payment of a dowry in Country D law.

23. The husband asserts that he has endeavoured to contact the wife on WhatsApp and on email but the she failed to respond. He asked her to return the children to Australia but had no communication from her. The husband asserts that while the wife refused to respond to his emails and messages, she and her parents called many of their common friends to make allegations about the husband to them.

24. The husband asserted in his affidavit that the wife has friends in Australia and is also employed by the F Bank and he was hopeful that she would return to Australia. He understood that she would return to work on 20 March 2016 but had extended her flights to return instead on 29 March 2016.

25. The husband also asserted that in relation to the child B, prior to the wife taking the children to Country D, he was in childcare on Monday, Tuesday and Thursday while the husband worked from home on Wednesday to care for him and the wife would work from home on Friday to care for him. The husband says at [55] of his affidavit:

    The Wife has further alleged in complaints to the [Country D] Police that I have no concerns for my children. I am concerned that were the children to remain in the Wife’s care, she will seek to alienate them from me in circumstances where she has now fled Australia and not only removed the children from me but has told me that I will never see the children again.

26. On 29 February 2016 the husband filed a further affidavit together with an application in a case. In the further affidavit he asserted he had still not seen the children since they were removed on 24 November 2015, nor had there been any phone calls, emails or messages. He further asserted that it had come to his knowledge on 28 February 2016 that the wife arrived back in Australia with her father and, the husband thought, both the children. The husband asserts it was his uncle who informed him of this, to whom the wife had apparently sent a message. Despite contact with the uncle, the husband asserts the wife refused to say where she was living. The husband sought urgently by the application in a case that the children’s names be placed on the Airport Watch List and a location order to endeavour to locate and serve her with documents be made.

27. On 15 March 2016, two days prior to the listing of the matter before me, a solicitor filed a notice of address for service on behalf of the wife.

28. The husband filed a further affidavit on 17 March 2016 in which he sought to update the court of recent events. In that affidavit the husband said he had learned the wife was still in Australia but only with the parties’ youngest child, C. The husband deposed to having spoken to the Australian Federal Police who had confirmed that B did not return with the wife and her father on 19 February 2016 when she apparently returned to Australia. The husband asserted that on the basis of his application in a case filed 29 February 2016 for Airport Watch List orders, the children were both placed on the Watch List on an interim basis.

29. The husband asserts that on 7 March 2016 he was contacted by an investigator from the Passport Fraud Section in response to a complaint he had made to the Passport Office on 19 February 2016. By that complaint the husband said that he had not consented to or signed any documentation for a passport to be issued for either of the children and thus had been surprised that they had been able to be removed from Australia, with passports issued without his consent. The husband says that he was sent “snippets of [his] purported signatures” by the Passport Fraud Section and asserts that none of the signatures were his. He asserts he believes the Fraud Section is currently investigating the case.

30. The husband further asserts that he received a call from the Department of Human Services on 8 March 2016 in relation to an application for child support made by the wife on 4 March 2016. He says that upon advising he did not think both children were currently in the country, he was informed by the Department that they had been advised by the wife that both children were in Australia.

31. The husband then says that on 7 February 2016 he called Relationships Australia at Suburb L to arrange a counselling appoint “to secure counselling with the possibility to undertake mediation if the wife returned to Australia”. He learned on 10 March 2016 that the wife wished to schedule mediation from the CBD office and that he contacted Relationships Australia and advised them he had already contacted the Suburb L office and asked if the wife would attend counselling there. He asserts he subsequently received a call from the city office advising that the wife was not interested in mediation and the booking had been cancelled.

32. The husband concluded his further affidavit by saying he was not able to personally serve the wife with the documents as we was unware of her address and although he had attempted to have the documents served at her place of work, they had not been able to contact her for service of the documents.

33. At the hearing on 17 March 2016, the wife was represented by counsel and had filed a number of documents the day before, being 16 March 2016. Relevantly, in relation to interim orders, the wife sought that she have:

    a)Sole parental responsibility for the children;

    b)That she be permitted to take C to Country D provided:

    i.She give written notice to the husband of the proposed itinerary within 3 days;

    ii.She return both children within 30 days of departing; and

    iii.Within 3 days of returning to Australia she would deposit their passports

    c)The Australian Federal Police remove the names of the children from the Watch List

    d)That upon the children’s return to Australia, they live with the wife and spend supervised time with the husband once a fortnight for up to two hours;

34. The wife also sought on an interim and permanent basis that the husband attend upon a psychiatrist for a report. In relation to the parties’ two properties the wife sought detailed interim orders.

35. The wife’s affidavit filed 16 March 2016 asserts a number of complaints about the husband’s behaviour during the marriage, including:

    ·that he suffered from a serious gambling addiction;

    ·had a history of driving offences,

    ·did not want either of the children;

    ·was reluctant to come to the hospital for C’s birth but came in a rage and was abusive to the wife; and

    ·during the relationship behaved in a violent and abusive manner on multiple occasions.

36. The wife has a very different version of events in relation to the move to the Suburb I property, asserting that the husband insisted on the wife and her parents moving out of their rented unit in Suburb M, despite the Suburb I property being in a rundown state and not suitable for young children. She further asserts that the husband “took all of the furniture and appliances” leaving them to sleep on the floor for a week. The wife says that the husband also disconnected the electricity without notifying her.

37. The wife then deposes that her father suggested she return to Country D with the children for a short while so that he and the wife’s mother could assist her in caring for the children while she recovered from childbirth.

1. The wife mentions in her affidavit that she and her parents left for Country D prior to the day upon which it was agreed she and the husband would travel together.

2. The wife asserts that they were met at the airport in Country D by the husband’s parents and says there was an attempt to snatch B from her by the husband’s father.

3. The wife goes on to say she returned to Australia on1 8 February 2016 and that her father came with her to assist her in caring for C and also assist in finding accommodation for her. Although the wife’s affidavit does not indicate whether she left with the husband’s consent, counsel for the wife confirmed she left the country with the children without his permission. Counsel asserted on her behalf that family violence made her leave earlier, as did the purchase of the Suburb I property and the cessation of the availability of the rental property in Suburb M. The wife did not dispute, through counsel, that the husband had not seen the children in Country D, nor that he had not seen C since the child returned to Australia.

4. In her affidavit at [19] the wife asserts:

   I would like to return to [Country D] with [C] so that we can spend time with my mother. I will return with both children to Australia within 30 days and I will then surrender the children’s passports to the Court until further order. I am currently employed by the [F Bank] and I co-own 2 properties in Melbourne. I am an Australian citizen as are the children. My home is in Melbourne…

5. What the wife did not say in her affidavit, as was conceded on her behalf by counsel, was that since returning to Australia in February, she had endeavoured to leave Australia again with C to return to Country D but in view of the Watch List order she was stopped by the Australian Federal Police from leaving.

6. It was acknowledged that the wife only had a limited opportunity in which to file material and that any orders made at the hearing before me could only be on a very interim basis.

7. Without any significant opposition and some input to the arrangements by the wife, I made orders that the children, or such of them that are in Australia, spend time with the father at a play centre. The location of the play centre is to be nominated by the wife and the husband to be notified. The time between the child/ren and the husband will occur each Sunday from 2:00pm to 4:00pm, commencing 20 March 2016.

8. Otherwise the focus of the application before me was opposition by the wife to the husband’s application to restrain her from removing the children from Australia and to retain the children’s names on the Watch List.

9. The wife contended that it was important that she return to Country D as her mother was seriously ill. A photo of her mother in hospital was annexed to the wife’s affidavit, as was a report said to be from a Senior Consultant from the Cardiovascular Surgery Program  in Country D which stated that:

   Patient [the wife’s mother]… is on ventilator. Patient has wished her daughter [Ms Savastri] and her grandson [C] to be present here. This will aid her for the faster recovery and psychological support. Hence, we request the concern to authorize the travel of [Ms Savastri] and [C] for the intended purpose of treatment.

10. The report did not identify what illness the wife’s mother was suffering from, what treatment she was receiving, her prognosis nor how it was that the presence of the wife and 5 month old child would make any difference to her physical condition. 

11. As I have indicated, the wife asserted in her affidavit that she intended to return to Australia, that her home was in Australia, that her job was in Australia and that she was a citizen and owned property here. Apart from the wife’s intentions, which are a matter of subjectivity, I accept that the wife is an Australian citizen, has a job at present,  is the owner of property, and I take those facts  into account. I further take into account the possibility that the wife’s statement of intention to return is also accurate, but of course that is not to say that she might not change her mind once she returned to Country D, even if one can accept her statement at face value.

12. However, there are a number of concerning features about the wife’s behaviour which ultimately lead me to conclude that it would not be appropriate to make the orders she sought. Those matters, in no particular order of importance, are:

    ·The nature of the wife’s communications with the police in Country D regarding the husband (especially as they may be dowry related and potentially causing problems for him leaving Country D if he goes back there);

    ·The nature of the complaints about the husband and the lack of relevance of some of them regarding the children (assertions of womanising is an example) ;

    ·The removal of the children to Country D without the consent of the husband and without advising him;

    ·The issue about the husband’s consent to the passports, and whether they were illegally obtained by the wife;

    ·Failure to allow the husband to see the children in Country D;

    ·Returning to Australia without informing the husband she and the youngest child had returned;

    ·Returning to Australia with one child and leaving the other child in Country D;

    ·Attempting to leave Australia again with the child C and her father;

    ·Until the hearing, having no apparent regard to the children’s right to have a relationship with the husband, both in Country D and Australia;

    ·The fact that Country D is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction and were the wife to return to Country D with C and then refuse to return to Australia, the considerable difficulties the husband might have in securing the return of the children, particularly in view of the complaints by the wife about the husband to police in Country D which have apparently already been made.

13. The wife asserted that if she could not return to Country D it would be difficult for to arrange for B to come back to Australia. In my view, the wife can make that arrangement. Her father accompanied her back to Australia in February, and, no doubt, he could come again with the child B. He need not stay for any length of time.

14. The court has not made any orders at this stage requiring the wife to ensure the return of B to Australia. If I accept the wife’s assertions that she intended to return to Australia with the children then she will no doubt arrange for him to return. In any event, while she is restrained from leaving Australia with C, she would no doubt wish to have B reunited with her. If the child has not been returned to Australia by the time of the adjourned hearing then, if the husband seeks it, the court may make further orders in relation to his return.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of the Honourable Chief Justice delivered on 30 March 2016.

Associate: 

Date: 30 March 2016