SODAR & SASSAME

[2010] FamCA 176

FAMILY COURT OF AUSTRALIA

SODAR & SASSAME [2010] FamCA 176

FAMILY LAW – CHILDREN – Watch list – Ex parte

Family Law Act 1975 (Cth)

Taylor and Taylor (1988) FLC 91-943

APPLICANT: Mr Sodar

RESPONDENT: Ms Sassame

FILE NUMBER: MLC 1550 of 2010

DATE DELIVERED: 5 MARCH 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: 3 MARCH 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR STRUM

SOLICITOR FOR THE APPLICANT: NICHOLES FAMILY LAWYERS

THE RESPONDENT: NO APPEARANCE

Orders

1. That the applicant husband have leave to proceed without notice to the wife.

2. That until further Order the mother, her servants and agents, are restrained from taking or sending or attempting to take or send the child from the Commonwealth of Australia and IT IS REQUESTED THAT the Australian Federal Police place the name of the child A SODAR (Male) born on … August 2007 on the Airport Watch List at all points of International arrivals and departures in the Commonwealth of Australia for the purposes of preventing removal of the child from the Commonwealth of Australia in breach of these Orders and maintain the child’s name on the Watch List.

3. That this order and the documents relating to it be not served at this point in time but that further consideration be given to that issue by the Registrar on the return date.

4. That the proceedings be adjourned to the Registrars Directions Hearing on 13 May 2010 at 12 noon.

5. That upon the wife becoming aware of paragraph 2 of these orders, she forthwith file a response to the husband’s application.

6. That both parties have liberty to apply on an urgent short notice basis pending the return of the proceedings.

IT IS CERTIFIED:

1. That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

2. Reserve costs.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1550  of 2010

MR SODAR

Applicant

And

MS SASSAME

Respondent

REASONS FOR JUDGMENT

1. Mr Sodar without notice to his wife Ms Sassame seeks orders that the only child of their marriage A (known as “…”) be prevented from being taken out of the Commonwealth of Australia.

2. The most unusual circumstance here is that it is not thought that A is currently in Australia.

3. The whole purpose of the application is to stop the wife running away in future with the child and to give this Court (or a court of similar jurisdiction) an opportunity to determine parenting orders.

4. Thus far, on the evidence presented to me, the wife has avoided her responsibilities to allow the child to have the benefit of a meaningful relationship with his father. 

5. The circumstances of the application and the background of the parties is set out hereafter. 

6. The husband’s application was filed on 19 February 2010.  He flew out of Australia prior to the application being filed.  He lives in the Middle East where his work commitments are met. 

7. The husband’s view was that his wife may be returning to Australia with the child to temporarily visit her mother who resides in Melbourne.  He claimed that if the wife was put on notice of the application for the reasons which I shall set out below, she would not return to Australia.  Substituted service on the maternal grandmother was therefore not considered an option.

8. The parties married in 2004 and had known each other from childhood. 

9. According to the husband, his wife was a financial services provider.  He is a manager of an international company. 

10. Both husband and wife are aged 32 years.  Both parties are Australian citizens.  The husband became an Australian citizen by grant and his family is of Lebanese background.  The wife was born in Australia and is an Australian citizen according to the husband.

11. The only child of the marriage is A who was born in August 2007. 

12. The husband gave evidence that his only form of communication with the wife was through an email address and mobile telephone number but neither of those has been successful. 

13. Prior to the birth of the child, the parties agreed to move to the Middle East to live and work.  The husband’s initial employment in the Middle East ended in March 2008 but in January 2009, he took up his current position. 

14. The child was born in Melbourne.  The wife came to Melbourne for the birth.  The husband stayed in the Middle East with his work commitments until just prior to the child’s birth.  He then came to Melbourne.  For one month after the child’s birth, the husband remained in Melbourne but then returned to the Middle East.  When the child was four months of age in or around early January 2008, the husband said that the wife returned to the Middle East. 

15. The parties separated under the one roof and remained so until the wife left with the child on 12 July 2009. 

16. The circumstances of the separation were set out in detail in the husband’s affidavit.  The truth of them remains to be seen but it is the only evidence upon which I can rely.  There may be alternate explanations from the wife but the circumstances were certainly surrounded with intrigue.  The separation is important in this case because it began a period of time during which the husband has not had a significant (if any) relationship with the child.

17. According to the husband, he was expecting the wife, the child and a nanny to meet him in Beirut.  Prior to the anticipated arrival, the husband was unable to contact his wife.  He spoke to the wife’s father who told him that he had no idea where his daughter and grandson were.  Eventually when the husband did speak to the wife, he said she assured him she was travelling to Beirut.

18. The husband said that prior to the separation on 12 July 2009, there was a discussion between them that upon their return to the Middle East, they would physically separate and he would move out of their home.  Whether the wife agreed with that course is not clear.

19. On 12 July 2009, the husband was told that the wife was on her way to Hong Kong with the child and would not be going to join him in Beirut.  When he spoke to the wife in Hong Kong she told him she had no choice.

20. The husband’s evidence was that over a number of days, he endeavoured to contact the wife by telephone but she refused to speak to him.

21. On 14 July 2009, the husband received an email from the wife’s father indicating that if he wanted to see the child he needed to travel to Hong Kong.  The father refused to tell the husband where the wife and the child were in Hong Kong.

22. It was the husband’s evidence that since July 2009, he has not seen the child but has been able to speak to him on a monthly basis for a few minutes.  It must be kept in mind that this is a child aged 2 who last saw his father prior to his second birthday.

23. Over the ensuing months after July, there was a number of emails between the husband, presumably the wife and her father the details of which do not advance the question of what was behind the wife’s evasiveness which precluded the husband from spending time with the child.

24. The wife was certainly making it clear that she needed money and that to use her words “[A] is fine but he misses you”.

25. On 20 July 2009, the wife sent an email which read:

    I am fine, [A] is fine.  When we decide where we will stay we will let you know and still thinking about it with Papy.  We still don’t know.

26. In August 2009, the wife’s father requested the husband travel to Egypt for the purposes of a visit with the wife and the child.  The husband flew to Egypt on 15 August where he was met by the wife’s father.  The father had apparently arranged a meeting between the husband and some priests but there was no suggestion of the presence of the wife or the child.  The husband left Egypt.

27. According to the husband, any emails he has otherwise sent to the wife have been frequently ignored as have daily telephone calls.

28. One such communication was in December 2009 to the wife about spending time with the child over Christmas but the wife did not respond.

29. The husband deposed to the fact that he did not know the whereabouts of the wife and the child otherwise.  The wife’s father is apparently living in Hong Kong. 

30. The husband said that he engaged lawyers in Hong Kong but he had been emotionally unable to commence proceedings until now.  He has now given instructions to the solicitors in Hong Kong and Melbourne to commence parenting proceedings.

31. On 19 February 2010 as I have indicated, the husband sought orders that he have sole parental responsibility for the child and that the child live with him.

32. To make an ex parte order at any time is something which should be done with caution and considerable thought but to then not provide notice of the making of the order should only be done rarely.  I am satisfied this is one of those rare occasions.

33. The jurisdiction to entertain an application of this nature arises from s 69E.  The relevant day referred to in s 69E is the day upon which the application was filed.  On that day, on the evidence, I am satisfied that all parents and the child were Australian citizens and therefore, this Court has jurisdiction to determine the matter.

34. The power to make the order sought comes from s 69H(1) which confers jurisdiction on the Court in relation to matters arising under Part VII.

35. Part VII of the Family Law Act 1975 (Cth) (“the Act”) relates to parenting proceedings.

36. Section 68B(1) provides that if proceedings are instituted in a court having jurisdiction for an injunction in relation to a child, the court may make such order or grant such injunction as it considers appropriate for the welfare of the child including a number of matters that are thereafter set out.  The jurisdiction is wide and all embracing.  The court is not restricted to the specific examples used in the section. 

37. What I am asked to order here is that the child A not leave Australia in the future albeit that he may not currently be here at the present time. 

38. Rule 5.12 of the Family Law Rules 2004, is the provision that applies in respect of applications without notice. The applicant must satisfy the Court that simply shortening time for a hearing would not be more appropriate than proceeding on an ex parte basis. The Court must be satisfied however that an order should be made without notice to that other party. To make an order in those circumstances, the Court must be satisfied that the affidavit material in support provides full and frank disclosure of all of the facts that would assist the Court to make a proper determination. Some of the examples used in Rule 5.2 including whether or not the respondent has been told of the intention to make the application. In a case like this, one could not be confident that the wife would take any notice of such an indication having regard to the matters to which I have earlier referred about her responsiveness to the husband. In addition, putting the wife on notice may very well mean that she would not return to Australia to submit to the jurisdiction of the Court.

39. Another matter in an affidavit suggested by the Rules is that details of any hardship, danger or prejudice to the wife or child or some other person should be set out.  The obvious difficulty for the wife might be that she could arrive in Australia and then not be able to take the child out again.  That matter may then be ameliorated by the matters to which I shall refer below.

40. The Rules also require a party to set out why the order must be made urgently. In this case, the husband has sat on his hands for some months. His explanation has been that he was not emotionally able to bring the application. Whether that is right or not remains to be seen but it would still be obvious that the jurisdiction may not be able to be exercised if the wife was aware that the proceedings were on foot. The concept of the best interests or welfare of a child being the paramount consideration in parenting proceedings sometimes clashes with the principles of natural justice. In respect of children and parenting, much can be gleaned from s 60B of the Act. The objects and principles there set out refer to the best interests of children being met by a number of things including ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, ensuring that they receive adequate and proper parenting, ensuring that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children. The principles underlying those objects include children having a right to know and be cared for by their parents, spending time on a regular basis with both of their parents, parents jointly sharing duties and responsibilities concerning the care, welfare and development of their children and agreeing about the future parenting of the children.

41. If a parent whose child is an Australian citizen, deliberately evades those responsibilities, the child’s best interests may not be met.  As such, there is a clash of principles as I mentioned.  The child’s interests must prevail.

42. These are interim proceedings.  If the husband has not been candid or made full or frank disclosure of the facts, any damages caused to the wife by the husband’s conduct in urging these orders can be ameliorated.  Importantly, lack of candour can lead a court to decide that the husband is not an appropriate parent because of the many considerations such as those set out in s 60CC.

43. Ultimately, the question of whether the injunctive orders should be met is a discretionary one.  The unusual feature is that there is no certainty that A is currently in Australia.  The Full Court in Taylor and Taylor (1988) FLC 91-943 referred to the Court not exercising jurisdiction where children were not in Australia unless the circumstances were exceptional. Two basic circumstances were considered. The first was where there was no likelihood of enforcing an order which the Court may make and the other is where the child was in a forum better suited to where the child lived. Those matters however cannot be considered until such time as the wife has an opportunity to be heard.

44. In Taylor, the Full Court made an observation which has stood the test of time that a court should not make orders affecting the right of freedom of movement without giving someone an opportunity to be heard. That sentiment goes without saying but it must take second place in circumstances where a parent is not fulfilling the other parenting obligations set out in Part VII of the Act.

45. In this case, it seems appropriate and proper for me to make the orders suggested by the husband. 

46. I do so however on the basis that he gives an undertaking to be responsible for damages ordered by the Court in the event that the wife comes into Australia with the child and cannot exit and he requires her then to go to the inconvenience of staying in Australia without his own position being serious about pursuing the orders in relation to the child.

I certify that the preceding Forty Six (46) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  9 March 2010