State Central Authority and Khadem

[2014] FamCA 145

FAMILY COURT OF AUSTRALIA

STATE CENTRAL AUTHORITY & KHADEM [2014] FamCA 145

FAMILY LAW – CHILD ABDUCTION – Hague Convention - Exparte injunction.

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

APPLICANT: State Central Authority

RESPONDENT: Mr Khadem

FILE NUMBER: MLC 1480 of 2014

DATE DELIVERED: 25 February 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 25 February 2014

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Accornero

Orders

1. THAT leave is granted to the applicant to proceed ex parte with orders in terms of paragraphs (b), (c) and (d) of the application filed on 24 February 2014.

2. THAT the application be adjourned for further hearing on 14 March 2014 at 9:00am.

3. THAT the applicant effect service of the application and this Order on the respondent father as soon as practicable.

4. THAT in the event that the respondent father has been served with the application by the adjourned date:

   (a)       he file and serve an affidavit in response to the application indicating his defence to the application no later than 12 March 2014;

   (b)       he file and serve a Notice for Address for Service; and

   (c)       he attend Court personally on 14 March 2014 at 9:00am and remain at Court pending further order of the Court.

5. THAT until further order, the respondent father, his servants or agents be restrained by injunction from causing or permitting or suffering the children W (born … 2002), T (born … 2005), S (born … 2006) and L (born … 2008) (“the Children”):

   (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 provisions of such order;

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

   (c)to reside at any address other than their present residential address or any other residence at which the applicant has agreed that the children reside 

6. THAT the Australian Federal Police place the names of the Children on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Airport Watch List until further order of the Court.

7. THAT 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 names of the children or upon which the children appear and be restrained from applying for any further or other passports for the children pending further orders of this Court.

8. THAT 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.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1480 of 2014

State Central Authority

Applicant

And

Mr Khadem

Respondent

REASONS FOR JUDGMENT

1. This is an application under the Family Law (Child Abduction Convention) Regulations 1986.  The application has been brought on urgently by the State Central Authority.  The application was filed yesterday and no attempt has, as yet, been made to serve it.

2. Because of the circumstances under which the father brought the four children to Australia where he has not been in touch with the mother, it is appropriate in the circumstances to proceed on an ex parte basis for fear that the father may take another course and abscond.

3. The application is accompanied by an affidavit by the mother who asserts that in 2010, she and the father reached an agreement that they would share the children roughly equally.  But that changed a little time thereafter because she began working full time and, therefore, saw the children only on weekends whilst the father had the children on a full time basis during the week when he was not working.

4. It seems that in December 2013 the children entered Australia indicating, on their passenger cards, that they intended to stay for 12 months.  It is asserted that the mother had not been informed where the children were residing and did not consent to the removal or retention of the children in Australia. 

5. The mother further asserts that she has not had any contact with the children since they arrived in Australia and, she having rights of custody, it would seem on the bare facts that the father has wrongfully retained the children in Australia. 

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 25 February 2014.

Associate: 

Date:  14 March 2014