STATE CENTRAL AUTHORITY & AFRIDI

[2018] FamCA 728

FAMILY COURT OF AUSTRALIA

STATE CENTRAL AUTHORITY & AFRIDI [2018] FamCA 728

FAMILY LAW – CHILD ABDUCTION – Hague Convention – ex-parte application – where it is asserted that child’s mother, who lives in Fiji, has rights of access under the provisions of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) – where the child is living in Australia with the father – interim order restraining the father from removing the child from the State of Victoria or Australia.

Family Law Act 1975 (Cth)
Family Law (Child Abduction Convention) Regulations 1986 (Cth)

APPLICANT: State Central Authority

RESPONDENT: Mr Afridi

FILE NUMBER: MLC 9325 of 2018

DATE DELIVERED: 15 August 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 15 August 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Wilson

SOLICITOR FOR THE APPLICANT: State Central Authority

THE RESPONDENT: No Appearance

It is Ordered that

1. Leave be granted to the applicant to proceed today without notice to the respondent and the matter be heard ex parte.

2. The application filed 14 August 2018 be adjourned for mention on 27 August 2018 at 9.00am before Justice Bennett.

3. UNTIL FURTHER ORDER, the respondent father MR AFRIDI, his servant or agents be and are hereby restrained from causing or permitting or suffering the Child, X born … 2013:

   (a)to be removed from the Commonwealth of Australia, and in this regard all officers of the Australian Federal Police be directed to enforce, if required, the provision of such order;

   (b)       to be removed from the State of Victoria; or

   (c)to reside at any address other than his present residential address (which must be advised to the applicant’s solicitors in writing) or any other residence at which the applicant has agreed that the Child reside.

4. The respondent father, his servants or agents forthwith deliver up to the Registrar of the Family Court of Australia at Melbourne for safe custody any and all passports held in the name of the Child or upon which the Child appears and be restrained from applying for any further or other passports for the child pending further orders of this Court.

5. A sealed copy of these orders be provided forthwith to the Marshal of the Family Court of Australia, the Commissioner of the Australian Federal Police and the Secretary of the Commonwealth Department of Foreign Affairs and Trade.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym State Central Authority & Afridi has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 9325 of 2018

State Central Authority

Applicant

And

Mr Afridi

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This matter comes before the Court today upon a Form 4 Application filed yesterday, 14 August 2018.  That is an application in relation to the child X, born in 2013. 

2. The application is made on an ex-parte basis, seeking interim orders restraining the respondent father from causing or permitting the child to be removed from the Commonwealth of Australia, to be removed from the State of Victoria, or to reside at any place other than his current residential address. It is said in the application that the child’s mother, who lives in Fiji, has rights of access under the provisions of the Family Law (Child Abduction Convention) Regulations 1986 (Cth). The background to the matter is as follows.

3. As I have noted, the child was born in 2013, in Country J.  When she was aged approximately six months, she relocated to Fiji with her mother. That occurred sometime in 2014.  The child continued to reside in Fiji with the mother until approximately February 2016.  At that time, it is said on behalf of the mother that there was an agreement between she and the respondent father that he have custody of the child, and that he be permitted to relocate to Australia with the child. 

4. Orders were made in the Fijian Magistrates’ Court in February 2016 which gave effect to that arrangement.  It is said that at that time, there was a verbal agreement between the mother and the father as to arrangements for the mother to have contact with the child.

5. Subsequent to those orders being made, there were further proceedings in the Fijian Magistrates’ Court.  In April 2017, interim orders were made which provided for the mother to have electronic communication with the child via video or Skype each Saturday and Wednesday, and further that she be permitted to have telephone communication with the child on two days per week. 

6. There were issues between the parents with respect to those orders.  The Form 4 Application filed indicates that the father filed an appeal against those orders in the Courts in Fiji.  He did not appear at the hearing of that appeal.  In September 2017, a certificate of enforceability was issued by the Courts in Fiji with respect to the orders made in April 2017.

7. It is said by the applicant that the mother has had no communication or contact with the child since April of 2017.  The mother now seeks, through the State Central Authority, to exercise rights of access, and it is in those circumstances that the application comes before the Court.

8. It is also submitted that, given the history of the matter that I have described, that the father presents as a flight risk, and it is for those reasons that it is said that it is necessary for ex-parte orders to be made restraining the father’s movement within Australia, to restrain him from removing the child from Australia, and, to give effect to that order, that there should be an order that he deliver the child’s passport to the Registrar of the Family Court of Australia.

9. Having had the opportunity of reading the application, and having considered submissions made on behalf of the applicant, I am satisfied that first, it is appropriate that there be leave to proceed with the interim application on an ex-parte basis and further, that it is appropriate that there be orders made in the form sought.

10. I am mindful, of course, that the father has not yet had an opportunity to present his case to the Court.  It may be that there are reasonable and appropriate explanations for what has occurred.  But until such time as he has an opportunity to put his position to the Court, I am satisfied that it is appropriate that there be safeguards in place to ensure that child remains within the jurisdiction of this Court until there can be a determination of the issues before the Court.

11. I am intending to adjourn the matter for a relatively short period, to enable service of the application and these orders upon the father and to give him an opportunity to obtain legal advice and hopefully present to Court on the adjourned date, with the assistance of a lawyer, who will be able to indicate what the father’s position is in respect of these applications.  Therefore I will make orders in the terms of the minute of order that is provided by the applicant, with the amendments as discussed with counsel for the applicant.  That minute will be marked with the letter A.  It will remain on the Court file.  I direct that the applicant’s solicitors engross and file that order at Court within seven days.  The preparation of the order will be expedited upon presentation of the minute in appropriate form.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 15 August 2018.

Associate:  

Date:  15 August 2018