State Central Authority and Abbas

[2009] FamCA 44

FAMILY COURT OF AUSTRALIA

STATE CENTRAL AUTHORITY & ABBAS [2009] FamCA 44

FAMILY LAW – INJUNCTIONS – Ex parte and Interlocutory – State Central Authority – Airport Watch List

Family Court of Australia 1975 (Cth)

APPLICANT: Secretary to the Department of Human Services as State Central Authority

RESPONDENT: Mr Abbas

FILE NUMBER: MLC 169 of 2009

DATE DELIVERED: 9 January 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 9 January 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms S. Porritt

SOLICITOR FOR THE APPLICANT: Department of Human Services

Orders

1. That the applicant has leave to proceed without notice to the respondent.

2. That until further order, the respondent, MR ABBAS both personally or by his servants and agents be, and is hereby, restrained from:

   (a)removing or attempting to remove the child … born … March 1999 from the Commonwealth of Australia;

   (b)removing or attempting to remove the said child from the State of Victoria; or

   (c)causing or permitting or suffering the current place of residence of the said child to be changed without the prior written consent of the applicant, such consent not to be unreasonably withheld.

3. That the respondent, 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 said child or upon which the said child appears and be restrained from applying for any further or other passports for the said child pending further orders of this Court, and thereafter, each party be at liberty to inspect the passports upon arrangements being made with the Registry Manager.

4. That such Officers of the Department of Human Services, Victoria, as the Secretary to such Department may from time to time direct, be requested and permitted to visit and enter the place of residence of the respondent and to have such access to the said child as they may reasonably require for the purposes of investigating and determining the welfare of the said child.

AND IT IS REQUESTED:

1. That  the Australian Federal Police give effect to sub-paragraph 2 (a) of this Order by placing the name of the said child on the Airport Watch List in force at all points of arrival and departure of the Commonwealth of Australia and maintain the said child’s name on the Watch List until further order of the Court.

AND IT IS FURTHER ORDERED:

1. That the applicant forthwith provide a sealed copy of this Order to the Australian Federal Police.

2. That the applicant serve a copy of this Order and the Form 2 Application on the respondent as soon as practicable and thereafter the respondent forthwith file a Notice of Address for Service.

3. That the application be adjourned to 16 January 2009 before Justice Bennett for the making of orders and directions including directions as to the filing of documents and an expedited hearing.

4. That the respondent attends this Court with the said child on the adjourned date.

5. That the applicant and the respondent have liberty to vary or set aside these orders on short notice.

6. That my reasons be transcribed.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 169 of 2009

STATE CENTRAL AUTHORITY

Applicant

And

MR ABBAS

Respondent

REASONS FOR JUDGMENT

1. This is an urgent application brought on by the delegate of the State Central Authority who is the secretary of the Department of Human Services in Victoria. It has been brought on without notice to the father. It is an application under the Family Law (Child Abduction Convention) Regulations 1986.

2. I have before me a comprehensive file embodied in an affidavit relating to a child, a daughter, who was born in March 1999.  This child's history would appear to be unfortunate, if not tragic.  There appears in the evidence orders made by a Dutch court, giving the care of the child to N Foundation.

3. The father has taken the child.  The father, according to the material, is an Australian resident and is said to be in F, a suburb of Melbourne.  The Convention requires swift action to determine whether a child should or should not be returned regardless of the circumstances. 

4. In this case, I think it is important, having regard to what I have read, that the court move swiftly to sort this out.  There are two important considerations in doing that.  The first is that I am asked to make an airport watch order; the second is that the department needs to ascertain just what circumstances the child is living under.  It is not in the affidavit material but I have been told from the bar table that the department received advice this morning that the father has expressed an intention to his former wife to return to Africa.  It is noted in the file that that is not where the child was born, but she is shown as having a African nationality.  According to the indication this morning, the father wishes to return to Africa for the purposes of female circumcision.

5. The other issue is that the address shown in the material would appear to be the father's own mother's address, he being shown in documents as an Australian citizen but his details otherwise are not known.

6. In those circumstances, I see no prejudice to the father to proceed in his absence, but also to prevent him from leaving Australia for a short period of time with the child, just in case the purpose that I have just mentioned is in fact what he had in mind.

7. In addition, I think it is important that not only are these documents served on him but that the department intervenes to see the circumstances under which the child is living.  The material shows that the child was interviewed by the welfare authorities in Holland and expressed some concern throughout September and October of 2008, but seemed to be a little different in November 2008.  Notwithstanding the change, there still was expressed concern about just what circumstances the child was living under.  In those circumstances, it is appropriate for me to make the orders.

I certify that the preceding Seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  15 January 2009