State Central Authority: Department of Human Services and Khadem

[2014] FamCA 21

AMENDED REASONS
FAMILY COURT OF AUSTRALIA

STATE CENTRAL AUTHORITY: DEPARTMENT OF HUMAN SERVICES & KHADEM [2014] FamCA 21

FAMILY LAW – CHILD ABDUCTION – Hague Convention – Children’s names to be placed on the Airport Watch List – Injunctive orders granted ex parte – Matter adjourned

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

IN THE MATTER OF
THE CHILD C
BORN … MAY 2003
and
THE CHILD D
BORN … JUNE 2007

APPLICANT: State Central Authority; Department Of Human Services

RESPONDENT: Ms Khadem

FILE NUMBER: MLC 288 of 2014

DATE DELIVERED: 16 January 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 16 January 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Accornero

SOLICITOR FOR THE APPLICANT:	Department of Human Services
THE RESPONDENT:	No appearance

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 15 January 2014.

2. THAT the application be adjourned for further hearing on 29 January 2014 at 9:00am.

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

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

   (a)she attend Court personally on 29 January 2014 at 9:00am and remain at Court pending further order of the Court; and

   (b)file and serve a Notice of Address for Service.

5. THAT until further order, the respondent mother, her servants or agents be restrained by injunction from causing or permitting or suffering the children C (female) born … May 2003 and D (female) born … June 2007 (“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 mother, her 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; Department of Human Services & 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 288 of 2014

IN THE MATTER OF
THE CHILD C
BORN … MAY 2003
and
THE CHILD D
BORN … JUNE 2007

State Central Authority; Department Of Human Services

Applicant

And

Ms Khadem

Respondent

REASONS FOR JUDGMENT

1. This is an application under the Family Law (Child Abduction Convention) Regulations 1986 (Cth).  It is an application to proceed on an ex parte basis.  The application was filed on 15 January.  It relates to two children aged 10 and six both of whom were said to be habitually resident in Germany and there was an agreement between the mother and the father in Germany that the children could travel internationally for a period outside of Germany. 

2. It would appear that the mother brought the children to Australia in July 2013 and according to the allegation, the passenger cards upon entry into Australia indicated that the children were visiting on a temporary basis.

3. There being no other indication of an exit from Australia, one would imagine why some six or seven months would be seen as a temporary arrangement.

4. According to the requesting parent, the children are residing with the maternal aunt in Suburb E and the father has not been able to communicate with the children at all.

5. The father therefore, as the requesting party, asserts that there has been a wrongful retention of the children in Australia in breach of his rights of custody.

6. It is unusual for courts to make injunctive orders on an ex parte basis, but having regard to the fact that the mother first has entered Australia on a temporary basis and has been here for a lot longer than I would have expected to be temporary, and the father is alleging that he is being prevented from communicating with the children, I think it is appropriate to ensure there is no further movement by the mother unnecessarily with the children.

7. On that basis I am prepared to allow the injunctive orders to be made without notice to the mother.

8. Accordingly I will adjourn the matter for a week and a half to enable service to occur and for the matter to be returned on 29 January 2014 at 9 o'clock in the morning, on which day I would expect that the mother will have some indication as to what, if any, defence she has to the allegations and failing a defence, then the matter can proceed there and then otherwise the matter will be fixed for a hearing very shortly after 29 January.

9. In the matter of State Central Authority & Khadem, I make orders adjourning the matter to 9 am on 29 January 2014 and otherwise in terms of paragraph (b), (c) and (d) of the application filed 15 January and I will ask the solicitor for the State Central Authority to email the draft orders this day.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 16 January 2014.

Associate: 

Date:  23 January 2014