Tamal and Semak and Anor

[2018] FamCA 307

FAMILY COURT OF AUSTRALIA

TAMAL & SEMAK & ANOR [2018] FamCA 307

FAMILY LAW – PRACTICE AND PROCEDURE – Where appropriate for application made by the Independent Children’s Lawyer to be heard ex parte –  
Where property injunction order sought to assist child recovery – Where appropriate for order to be made.

Family Law Act 1975 (Cth) s 68B s 114
Family Law Rules 2004 (Cth) rr 5.12, 6.02

Tamal & Semak (No 2) [2017] FamCA 972

APPLICANT: Ms Tamal

FIRST RESPONDENT: Mr Semak

SECOND RESPONDENT: Ms H Semak (aka Ms N)

INDEPENDENT CHILDREN’S LAWYER: Ms Carroll

FILE NUMBER: PAC 5255 of 2015

DATE DELIVERED: 6 March 2018

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 6 March 2018

REPRESENTATION

APPLICANT:

No appearance

Fay Rose Legal

SOLICITOR FOR THE FIRST RESPONDENT: Stewart Cuddy & Mockler

SECOND RESPONDENT – SELF-REPRESENTED LITIGANT: No appearance

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Barnett

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Crawford Ryan Lawyers Pty Ltd

Orders

1. Leave be granted to list this application on short notice.

2. Leave be granted to the Independent Children’s Lawyer to have the Application in a Case filed 5 March 2018 be heard and determined in the first instance on an ex parte basis.

3. Ms H Semak (also known as Ms N) be joined as Second Respondent in these proceedings as the paternal grandmother.

4. Until further order that Ms H Semak (also known as Ms N) be hereby injuncted and restrained from transferring, encumbering or otherwise dealing with the property located at O Street, Suburb P NSW … being the whole of the property in Folio Identifier ...

5. Leave is granted for service of the present Application in a Case and affidavit in support and a sealed copy of the Orders made today to be effected upon the Second Respondent by a sealed copy of such documents being served by express post on the father’s solicitors Stewart Cuddy & Mockler together with a letter requesting that the enclosed documents be provided to their client, Mr Semak, and be provided to the Second Respondent Ms H Semak (also known as Ms N) and otherwise service on the Second Respondent be effected by personal service of the Application in a Case and affidavit in support and a sealed copy of Orders made today upon Ms Semak, Q Street, Suburb R NSW … together with a letter requesting that the enclosed documents be provided to the Second Respondent, the paternal grandmother Ms H Semak (also known as Ms N).

6. The Application in a Case is adjourned for further judicial case management to 9.30am on Thursday, 29 March 2018.

7. Leave is granted to the parties and the Independent Children’s Lawyer to relist on short notice by application to the Court in chambers in appropriate circumstances.

8. The costs of the Independent Children’s Lawyer of today be reserved.

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 Tamal & Semak and Anor 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 PARRAMATTA

FILE NUMBER: PAC 5255  of 2015

Ms Tamal

Applicant

And

Mr Semak

First Respondent

And

Ms H Semak (aka Ms N)

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. The application before the Court is an Application in a Case filed by the Independent Children’s Lawyer in these long-running parenting proceedings.  The background to the proceedings are set out in some detail in Reasons for Judgment delivered 29 November 2017 in these proceedings: Tamal & Semak (No 2) [2017] FamCA 972.

2. The father in these proceedings, in being dealt with for contravention of orders, was sentenced to a period of six months imprisonment on 29 November 2017 or until such earlier time as he complies with orders made by this Court on 13 March 2017 for the return of the child, D, born in 2012, to the Commonwealth of Australia.  The father remains in custody as a consequence of those orders and it is apparent that no steps have been taken to facilitate the child being returned to Australia. 

3. As set out in the Reasons relating to the contravention application, there is no issue that the child remains in Country E in the care of the paternal grandmother who, for her own reasons, has refused, it appears, to cooperate with the father’s requests for the child to be returned to Australia.  In particular, those requests made by him prior to his sentencing for the contravention. 

4. The orders sought by the Independent Children’s Lawyer are sought on an ex parte basis and the Court is satisfied that it is appropriate to deal with the application on an ex parte basis so as to avoid notice being given to the proposed second respondent in these proceedings, Ms H Semak, the paternal grandmother, who owns an unencumbered property at Suburb P in Sydney (Rule 5.12 Family Law Rules 2004 (Cth)).

5. It is submitted by counsel for the Independent Children’s Lawyer, and it is accepted, that there is a risk that there could be an adverse dealing with that property in the event that the paternal grandmother or, indeed, other members of the father’s family become aware of the present application. 

6. The application is twofold.  Firstly, to join the paternal grandmother to these proceedings as second respondent and, in so doing, make an order restraining her by way of injunction from transferring, encumbering or otherwise dealing with the property located at O Street, Suburb P, New South Wales …, being the holder of the property comprised in folio identifier ….  In terms of a procedural application, leave is also sought for service to be effected on the paternal grandmother by way of substituted service on the father’s solicitors who remain on the record, being Stewart, Cuddy and Mockler, and also with service to be effected on the father’s sister, Ms Semak, at her home at Q Street, Suburb R, New South Wales ... 

7. The power to join the second respondent is clear in that she, indeed, is a person interested in the welfare of the child, that, in fact, is the person with whom the child currently resides and it would appear the child’s primary carer, although notwithstanding in breach of orders of this Court. The Court is readily satisfied that it is appropriate to join the paternal grandmother as a party to the proceedings (Rule 6.02 Family Law Rules 2004 (Cth)).

8. The Court is also satisfied, for the reasons referred to above, that it is appropriate that there be an order for substituted service in that service be effected by service on the father’s solicitor and/or service upon the father’s sister, Ms Semak, at her home at Suburb R.  The issue for consideration in substance is whether an order should be made restraining the second respondent from dealing with her property at O Street, Suburb P.  The Court now has, for some time, been endeavouring to facilitate the return of the subject child, D, to the Commonwealth of Australia without success.

9. The paternal grandmother has a connection with Australia notwithstanding her residence in Country E in that she owns an unencumbered real estate property here in Australia and that orders in relation to that property may well procure her engagement in these proceedings and, ultimately, the return of the child to the Commonwealth of Australia. 

10. The power to make such an injunction is found in s 68B of the Family Law Act 1975 (Cth), which provides that a court exercising jurisdiction under this Act in proceedings other than certain proceedings may grant an injunction in relation to a child by interlocutory order or otherwise, including an injunction in aid of the enforcement of a degree, in any case which appears to the Court to be just or convenient to do so and either unconditionally or upon such terms and conditions as the Court considers appropriate. The Court has similar powers under s 114 of the Act.

11. In all of the circumstances of this matter and, in particular, in the circumstances more fully set out in the Court’s Reasons for Judgment delivered 29 November 2017, which see the father remaining in custody, it is considered appropriate that an order be made as sought by the Independent Children’s Lawyer as it is considered that such an order may well facilitate, ultimately, the engagement of the paternal grandmother in these proceedings and the return of the child to the Commonwealth of Australia.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 6 March 2018.

Legal Associate: 

Date:  10 May 2018