SMITH & GARDNER

[2015] FCCA 2100

FEDERAL CIRCUIT COURT OF AUSTRALIA

SMITH & GARDNER [2015] FCCA 2100

Catchwords:
FAMILY LAW – Children – parenting orders – overseas travel – Family Law Watch List – injunction – where father fears mother may remove child from Australia – best interests of the child considered.

FAMILY LAW – Divorce – application for divorce order where parties separated five weeks previously – need to demonstrate irretrievable breakdown of marriage as evidenced by separation of not less than 12 months – no reasonable prospect of successfully prosecuting action for divorce – application summarily dismissed.

PRACTICE AND PROCEDURE – Where applicant does not know the whereabouts of the respondent – Commonwealth Information Order to issue – information not to be disclosed to applicant personally.

Legislation:
Family Law Act 1975 (Cth), ss.48, 67K, 67L, 67N, 67P

Federal Circuit Court Rules 2001, r.13.10

Applicant: MR SMITH

Respondent: MS GARDNER

File Number: SYC 3823 of 2015

Judgment of: Judge Scarlett

Hearing date: 20 July 2015

Date of Last Submission: 20 July 2015

Delivered at: Sydney

Delivered on: 20 July 2015

REPRESENTATION

Applicant: In Person

Respondent: No appearance

ORDERS

1. The Applicant is granted leave to proceed ex parte.

2. The Applicant Father and the Respondent Mother are restrained by injunction from removing or attempting to remove or causing or permitting the removal of the child X (a male) born (omitted) 2015 from the Commonwealth of Australia.

3. IT IS REQUESTED that the Australian Federal Police give effect to the immediately preceding order by placing the name of the child X (a male) born (omitted) 2015 the Family Law 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 Family Law Watch List until 19 July 2017 or further Order of the Court.

4. The Australian Passport Office is requested to place the name of the child X on Child Alert and not to issue any passport for the said child X (a male) born (omitted) 2015 until 19 July 2017 or further Order of the Court.

5. As provided by subsection 67N(2) of the Family Law Act 1975 the Chief Executive Officer of Centrelink is to furnish to the Registry Manager of the Federal Circuit Court of Australia at Sydney information about the child X born (omitted) 2015 and the child’s mother MS GARDNER born (omitted) 1987 that is contained in or comes into the records of Centrelink.

6. As provided by subsection 67P(1) of the Family Law Act 1975 leave is granted to disclose the information provided to the Registry Manager of the Federal Circuit Court of Australia at Sydney and the Registry Manager is granted leave to disclose that information to a legal adviser for the Applicant for the purpose of arranging service of court process.

7. The information provided to the Registry Manager is not to be disclosed to the Applicant personally.

8. Order 2 of the Application filed on 5 June 2015 seeking a divorce order is summarily dismissed.

9. The application is adjourned to 10:00 am on Monday 24 August 2015 for further mention and the Applicant is granted leave to amend the return date on the service copies of the Court documents.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYC 3823 of 2015

MR SMITH

Applicant

And

MS GARDNER

Respondent

REASONS FOR JUDGMENT

1. This is an application by the father of a little boy called X for parenting orders.  X was born on (omitted) 2015 and has been living with his mother, the Respondent.  The father is concerned that now that he and the mother have separated, the mother may take the child out of the country and return home with him to (country omitted), which is the country in which she was born.  The orders that he seeks would restrain the mother from removing the child from Australia, would place the child’s name on the Family Law Watchlist and would place the child’s name on Child Alert for the Australian Passport Office.

2. He also sought an order permitting him to commence divorce proceedings but this application will not be successful as the ground for divorce has not yet been established.  The father is seeking these orders ex parte. 

3. The circumstances are that his wife has left with the child and he does not know where she is. She may be in a refuge, he thinks, but he does not know. Accordingly, in an Application in a Case he sought a location order, although it appears to me that the appropriate order is a Commonwealth Information Order under the provisions of section 67N of the Family Law Act 1975 (Cth).

Background

1. The background to this matter is that the parties commenced living together on (omitted) 2009 and were married on (omitted) 2012.  They separated according to the father’s application on 13 June this year.  There is one child of the marriage, X, who was born on (omitted) 2015.

Orders sought 

1. The father sought other orders in his application.  He has concerns about the mother’s mental state and believes that a psychiatric report should be obtained.  I have indicated to the father that due to the fact that the mother’s whereabouts are not known and that she has not had an opportunity to file any documents in reply any question of a psychiatric report is perhaps a little premature.  The father has agreed not to press that order at this stage.

2. The father, as I said, sought an order permitting him to commence divorce proceedings. However, on the evidence as the parties have only been separated since the middle of June it is not appropriate for divorce proceedings to be commenced at this stage. This application has no reasonably prospects of success because under section 48 of the Family Law Act 1975 subsection (2) relating to a ground for divorce provides:

   ‘the ground shall be held to have been established, and the divorce order shall be made, if, and only if, the court is satisfied that the parties separated and thereafter lived separately and apart for a continuous period of not less than 12 months immediately preceding the date of the filing of the application for the divorce order.’

   Clearly, if the father wishes to commence divorce proceedings he will need to wait until the middle of June next year.

Conclusions 

1. I am, however, satisfied that the father has concerns on reasonable grounds that the mother may attempt to leave the country and take the child with her. In my view it is appropriate to make orders to prevent this child being removed from Australia. In doing so, I have considered the best interests of the child. I am also satisfied that an order should be made by way of a Commonwealth Information Order directed to the Chief Executive Officer of Centrelink to provide to the Registry Manager of the Court here information about the child and the child’s mother. That can be done under subsection 67N(2) of the Family Law Act 1975. Under subsection 67P(1) of the Act that information can be provided to the applicant’s legal adviser for the purposes of arranging service of court process. However, it is not the case that the information may be provided to the applicant himself. He will need to obtain a solicitor to assist him in this process.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate:

Date:  6 August 2015