Smith and Herbert

[2011] FamCA 280

FAMILY COURT OF AUSTRALIA

SMITH & HERBERT [2011] FamCA 280

FAMILY LAW – CHILD ABDUCTION – Hague Convention

APPLICANT: Ms Smith

RESPONDENT: Mr Herbert

FILE NUMBER: MLC 2451 of 2011

DATE DELIVERED: 6 April 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 6 April 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT: Ms Billeam

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

Orders

1. That the mother shall be granted leave to proceed with her application filed on 25 March 2011 on an ex-parte basis.

2. That until further order the father, Mr Herbert born … December 1962 is and shall be restrained from leaving the Commonwealth of Australia, and the Australian Federal Police are requested to give effect to this order, including by placing his name on the airport WATCH LIST (PACE System) at all points of departure, and the court shall arrange service of a sealed copy of these orders on the AFP and the Marshal of the Family Court of Australia.

3. That the mother shall forthwith arrange personal service on the father of:

   (a)Her Initiating Application filed 25 March 2011;

   (b)Her affidavit in support filed 25 March 2011; and

   (c)A sealed copy of these orders.

4. That the court shall forthwith forward a copy of these orders and the mother’s application and affidavit to the Legal Division of the Department of Human Services with a request that a relevant officer involved in the Hague Convention proceedings attend court on 11 April 2011 so that the court can be informed of the status of any Hague Convention proceedings in relation to the child S born … August 1995.

5. That the existing application shall be otherwise adjourned to 10.00am before me on Monday 11 April 2011.

6. That the parties shall have liberty to apply to the court upon short written notice to the other party.

7. That a copy of my reasons given this day shall be transcribed and retained on the court file.

IT IS NOTED

1. That Mr Herbert must attend court on 11 April 2011 so that his side of the story can also be heard before further orders, if any, are made.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 2451 of 2011

Ms Smith

Applicant

And

Mr Herbert

Respondent

REASONS FOR JUDGMENT

1. Ms Smith, the mother of S, born in August 1995 and therefore aged 15, filed an Application on 25 March 2011, abridged to be listed before me today on an ex parte basis.  She seeks orders that her former husband and S have their names put on the airport watch list until further order, and for Mr Herbert to bring S to the Family Court child minding room, for the child to live with her until further order, and to spend time with her father as agreed. 

2. Ms Smith has filed an affidavit in support of her application.  I can see that the parties were married in 1990.  They separated in 2004, and they have an older daughter, Ms H, who is aged 19.  The brief version of what Ms Smith sets out in her affidavit is as follows. 

3. Following separation, she and her daughters were living together in Sri Lanka.  In April 2010, she and S came back to Australia.  Ms H remained in Sri Lanka to finish her studies.  By October 2010, Ms Smith had some very serious financial problems, including substantial arrears of rent, and she asked the father to look after S for awhile.  In the first few weeks of that arrangement, she found it very hard to make contact with S and was, she says, shocked, in December 2010, to be told that S was in fact back in Sri Lanka.  She was not only concerned for the child’s welfare, but also very concerned as to how she had travelled, given that Ms Smith was holding her original passport.  She suspects that the child’s father forged a new passport.  She says that she started Hague Convention proceedings in Sri Lanka in January, but the Department of Human Services lawyers told her to also commence proceedings in this Court, because it might be “faster”.

4. Ms Smith says she has recently spoken to her older daughter, according to the Victoria Legal Aid duty lawyer who has stepped in to act for her today.  She is concerned for the welfare of S, and she is concerned that, if the father knows that she is bringing proceedings to stop him from going to Sri Lanka to, for example, move S so that Ms Smith cannot find her, he will immediately leave the country. 

5. I am satisfied that a very short-term order should be made, but at this stage only to the effect of restraining the father from leaving Australia, and to ensure that the Federal Police are made aware of that order, and that his name is kept on the watch list for this brief period while the court sorts things out.

6. The case needs to return to court urgently so that Mr Herbert has the chance to put his side of the story, and I propose that the relevant branch within DHS should also be notified so the court can have a better and clearer understanding as to whether Hague proceedings have in fact been commenced and their progress.  Once the court has the opportunity to hear from the mother, the father, and someone from the Department of Human Services, it will become clearer as to whether this court should have any role in the proceedings at all.  I propose an order only until next Monday morning, to come back before me at 10 am.  I will have a defended trial running that day, but will at least make a little bit of time available just to work out what is needed.

7. I am satisfied that the child welfare provisions within the Act, and s114, enable me to restrain the father from leaving the country for this short period, given the concerns for the child.  I do propose, however, that he should have liberty to apply, even within the short time of this adjournment, because without having heard from him, it is impossible for me to envisage the ramifications for him in not being allowed to leave the country.

8. So I will make ex parte orders in accordance with the Minutes dated today’s date.  I will direct they remain on the Court file and the Court will prepare them.  They will be expedited forthwith.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau delivered on 6 April 2011.

Associate: 

Date: