TROTT & BLIGH

[2017] FamCA 1146

FAMILY COURT OF AUSTRALIA

TROTT & BLIGH [2017] FamCA 1146

FAMILY LAW – CHILDREN – Interim Parenting – Where the mother seeks to travel overseas – Where the application is sought to proceed without notice to the father – Where the Court does not consider the mother to be a flight risk – Leave is granted to proceed ex parte – Application to travel overseas during holiday period is granted.

Family Law Rules 2004 (Cth)

APPLICANT: Ms Trott

RESPONDENT: Mr Bligh

INDEPENDENT CHILDREN’S LAWYER: Legal Aid Queensland

FILE NUMBER: BRC 2766 of 2015

DATE DELIVERED: 1 December 2017

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Carew J

HEARING DATE: 27, 30 November 2017 & 1 December 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Evans & Company Family Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid Queensland

Order

UPON THE UNDERTAKING OF THE MOTHER:

A.To undertake return holiday travel with the subject child, B born … 2011, departing the Commonwealth of Australia on 18 December, 2017 and returning to the Commonwealth of Australia at the conclusion of the holiday travel on or as near as practicable to 24 January, 2018.

IT IS ORDERED UNTIL FURTHER ORDER:

1. That the Applicant be granted leave to proceed with the Application in a Case filed on 09 November 2017 on an ex parte basis.

2. That the Application in a Case, the supporting Affidavits and a copy of this Order be filed, but not made available on the Court’s portal service until after 24 January 2018.

3. That the Mother is permitted to leave the Commonwealth of Australia with the child B born … 2011 (“the child”), travelling between and including the dates of 18 December 2017 and 24 January 2018.

4. The Court requests that the Australian Federal Police remove the name of the child B born 22 August 2011 (male) (“the child”) from the Family Law Watch List at all points of international arrivals and departures in Australia for the purpose of the child travelling to and from the United Kingdom as follows:

   (a)Departing Australia on 18 December 2017 from Brisbane Airport to City T Airport; and

   (b)Returning to Australia from the United Kingdom departing United Kingdom on the 22 January 2018 and arriving in Australia on 24 January 2018.

5. The Court requests that this travel Order be given effect to by the Australian Federal Police notwithstanding that service of the Order on the child’s Father Mr Bligh (“the Father”) is hereby dispensed with and that the consent of the Father to the Order has not been sought or required with respect to the making of this Order.

6. The Mother is authorised to provide a copy of this Order to the Australian Federal Police.

7. Upon return of the child to Australia that the child’s name be placed on the Family Law Watch List and the Australian Federal Police are requested to maintain the child’s name on that list.

8. For the purposes of facilitating the travel:-

   (a)The Mother shall furnish to the Independent Children’s Lawyer, a copy of her travel itinerary PROVIDED THAT unless by an Order of the Court, the Independent Children’s Lawyer shall not be required to provide that document to any other party; and

   (b)The child is not to travel to any non-Hague Convention country during the period of travel between and including 18 December 2017 to 24 January 2018 other than for stopover purposes and only for the duration of the stopovers.

9. That this Order not be published or made available on the Court’s portal website and instead be sealed and marked “Not to be opened unless by Order of the Court” until 24 January 2018.

10. That a transcript of the proceedings that occurred on the 27, 30 November 2017 and 1 December 2017 be obtained but that the Father not have any access to such transcript until further Order, or the transcripts being served upon the Father.

11. That subject to paragraph 12 herein, all Affidavits, Case Outlines and all material relied upon by the Applicant and the Independent Children’s Lawyer in the Application in a Case filed on 9 November 2017 be served upon the Respondent as soon as reasonably practicable after 24 January 2018.

12. That the Affidavit filed by the Mother on 1 December 2017, be placed into a sealed envelope and held on the Court file, not to be opened or accessed by any party or person unless by an Order of the Court and this Affidavit shall not be required to be served upon the Father.

13. That a redacted copy of the Affidavit filed by the Mother on 1 December 2017 be filed with the Court as soon as reasonably practicable after 24 January 2018 and served upon the father with the material referred to in paragraph 11 herein.

14. That the balance of the Application relating to the enrolment of the child at school under an alias be adjourned to a date to be advised before the Senior Registrar not before 24 January 2018, and as soon as possible thereafter.

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 Trott & Bligh 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 BRISBANE

FILE NUMBER: BRC 2766 of 2015

Ms Trott

Applicant

And

Mr Bligh

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This is an ex parte application filed by the mother on 9 November 2017 that first came before me on 27 November 2017.  I was not satisfied with the material that was then before me that the matter should be dealt with on an ex parte basis. I required further affidavit material to be filed. The matter was relisted for further hearing and submissions on 30 November and at that time I required the mother to file a further affidavit addressing matters raised during submissions. I reserved my decision until 1 December 2017. 

2. Ms Trott (“the mother”) is the mother of B, born in 2011, and she is seeking permission to take B on a holiday to her native country the United Kingdom (“UK”) between 18 December 2017 and 24 January 2018. The mother is further seeking to enrol B under an alias when he commences school next year.  The mother’s application is supported by the Independent Children's Lawyer or at least her application to take B to the UK on holiday.

3. The application is brought ex parte because of the mother's fears that if Mr Bligh (“the father”)  knows that she will be travelling to the UK he will interfere with her holiday by causing third parties to make false allegations against her to the UK Police, Child Safety or Immigration, or even remove B from her care.  This belief is based upon the charges that are currently outstanding against the father. 

4. Rule 5.12 of the Family Law Rules 2004 (“the Rules”) sets out the matters about which the mother must satisfy the Court in order for her application to proceed without notice to the father. Rule 5.12 of the Rules provides as follows:

   An applicant seeking that an interim order or procedural order be made without notice to the respondent must:

   (a)  satisfy the court about why:

   (i)  shortening the time for service of the application and the fixing of an early date for hearing after service would not be more appropriate; and

   (ii)  an order should be made without notice to the other party; and

(b)  in an affidavit or orally, with the court's permission, make full and frank disclosure of all the facts relevant to the application, including:

(i)  whether there is a history or allegation of child abuse or family violence between the parties;

(ii)  whether there has been a previous case between the parties and, if so, the nature of the case;

(iii)  the particulars of any orders currently in force between the parties;

(iv)  whether there has been a breach of a previous order by either party to the case;

(v)  whether the respondent or the respondent's lawyer has been told of the intention to make the application;

(vi)  whether there is likely to be any hardship, danger or prejudice to the respondent, a child or a third party if the order is made;

(vii)  the capacity of the applicant to give an undertaking as to damages;

(viii)  the nature of the damage or harm that may result if the order is not made;

(ix)  why the order must be urgently made; and

(x)  the last known address or address for service of the other party.

1. I required further evidence in particular from the mother in relation to subparagraphs (b)(vi) and (viii) and that led to the affidavit that was provided to the Court and filed by leave on 30 November 2017.  When the matter then came before me on 30 November 2017 I required further evidence in relation to the issue of the mother being a possible flight risk if she were to depart Australia with B, something that the father has, at least in the past, expressed some concern about.  That resulted in a further affidavit being provided to the Court and was filed with leave today, 1 December 2017. There are three affidavits that I have taken into account:

   a)affidavit filed by the mother on 9 November 2017;

   b)affidavit filed by the mother on 30 November 2017 with leave; and

   c)affidavit filed by the mother on 1 December 2017 with leave.

2. In addition to that, both the Independent Children's Lawyer and the legal representative for the mother have provided written outlines and a list of other documents and, in particular, copies of certain records that have been produced to the Court pursuant to subpoena and reasons for judgment dated 24 May 2017 from Hogan J in relation to an earlier application involving these parties. The written outline tendered by the Independent Children’s Lawyer on 30 November 2017 was marked as exhibit 3 in these proceedings.

3. The father is currently in prison on remand.  He is awaiting trial for a number of criminal offences involving the mother.  The charges include child stealing, stalking ‘protracted’, breaches of a domestic violence order, breach of bail, obstructing police, possession of dangerous drugs and attempting to pervert the course of justice.  The charges against the father are very serious.  It is alleged against him that, contrary to a protection order, he attended at the child's kindergarten and removed him without permission.  It is further alleged against the father, contrary to a protection order, that he stalked the mother, which included the alleged use of electronic devices to find out where the child attended kindergarten.

4. It is also alleged against the father that he planted methamphetamine drugs in the mother’s car with the intention of causing the mother to be falsely charged with drug possession.  The father also allegedly sought to rely upon a false affidavit in his bail hearing, which I understand is the reason he was charged with attempting to pervert the course of justice.  As a consequence of the outstanding charges there has been an order made prohibiting the father from spending any time with the child or communicating with the child.  As a result of complaints allegedly made by the father, or persons on his behalf, the mother has been investigated for child abuse and immigration fraud.  The mother has not been charged with any offences as a result of those investigations. 

5. Both the mother and the father are originally from the UK and they migrated to Australia in 2012.  

6. It is in the context of the history that I have detailed that the mother deposes to going to considerable lengths to keep her whereabouts a secret from the father.   There is some evidence before me that the father has sought to elicit the assistance from third parties to assist him in illegal activities.  I am referring, in particular, to page 52 of exhibit 2 before me, which was tendered by the Independent Children's Lawyer on 30 November 2017, and in that document there are some records from police in relation to some of their investigations relating to the father and, relevantly, it refers to:

   On 4 November 2016 police received an email from the defendant's previous solicitor, forwarding a document purporting to be from [redacted].  The document had been sent from a [Country X] Solicitors Office and outlined that [redacted] had been in a casual relationship with the defendant from July 2016 until the date of his arrest, that she had frequently stayed at his house, drove his car and had access to all his computers and phones and knew his passwords to all of his online accounts, which she would access.  This is in stark contradiction to the excuse he provided police with during the search warrant, when he refused to disclose his passwords as it would be in breach of the “Secrecy Act” relating to his work [redacted] further claimed that she knew [Mr Bligh] was concerned about the safety of his son and she had reported [Ms Trott] to police on several occasions through Crimestoppers and the police website, unbeknownst to [Mr Bligh].  This document provided a mail.com email address for [redacted]. 

   Inquiries with Australian Border Force revealed a gmail.com email address for [redacted].  [Redacted] was contacted by police on this email address (believed to be her legitimate email address).  [Redacted] indicated she had never seen the document provided by the defendant's solicitor and that she knew nothing about Crimestoppers/Policelink submissions, nor had she ever had access to the defendant's electronic devices. She further indicated that she had never had a romantic relationship with [Mr Bligh] and that they had only ever been workmates.  [Redacted] further indicated that she had never been to [Country X] and on 2 November 2016 (date of document) she was in [Country Z]. 

   It is suspected the email sent to the defendant's solicitor is false and that the defendant has enlisted the assistance of someone to produce false documentation to support his bail application.

7. Further on page 52 of exhibit 2 the records state:

   Investigations regarding the defendant's electronic devices, seized on 29 September 2016, have to date identified information linking him to multiple Crimestopper/Policelink submissions.  It has also revealed a document headed Surveillance Log by Qld Covert Investigations conducted on 22/7/2015 (one week prior to [Bligh’s] son being stolen subject to other outstanding offences) which identified and located the day care facility which was previously unknown to [Bligh]. 

   Further inquiries conducted by police and checks with [Bligh's] Prisoner records have revealed he met with and befriended another watchhouse prisoner [redacted] whilst incarcerated at the [K Town] Watchhouse.  It appears that [redacted] and [Bligh] have similar DV history and [redacted] identified and empathised with [Bligh] and agreed to help him.

8. That evidence, particularly the latter part of it, would add some support for the mother's stated concerns about the father at least seeking to involve third parties to:

   a)find out her whereabouts; and

   b)to act on his behalf in some other way. 

9. The father's family live in the same city or township to which the mother proposes to travel to on her holiday.  The mother’s family also lives there.  There is some evidence before me that the father's sister has contacted the mother on behalf of the father, it would seem, requesting that she do what she can to have the criminal charges against him dropped.

10. Whilst I do not suggest that there is necessarily anything in that communication that is improper in a legal sense, it certainly, from the mother's perspective, put pressure upon her to act in a way that she obviously does not consider to be in her best interests or, indeed, the child's. 

11. The mother in her most recent affidavit sets out details of her current relationship.  The mother has been in a relationship now since March 2016.  The mother’s current partner, with whom she lives - and she has formally registered their de facto relationship - is an Australian citizen.  The mother annexes to her affidavit a tenancy agreement between herself and her partner with a landlord which started on 23 November 2017 and will end on 21 November 2018.  The mother also deposes to being in employment with the same employer for the last four and a half years.  The mother is in a responsible position with her employer and she annexes to her affidavit a letter from her employer that confirms that the mother has applied for, and been given, holiday leave and that she is expected to return in the new year to resume her employment. 

12. The mother has another child C. C is not a daughter of this father. C’s father lives in the UK and she has already left to spend holiday time with her father in the UK.  C is 15 years of age.  C has been accepted into a course commencing next year and the mother says that her daughter C is looking forward to commencing that course.  B has been re‑enrolled at his school to commence next year. A copy of the return airfares showing the intended departure date as 18 December for both the mother and B, and the return date departing the UK on 22 January 2018 is also annexed to the mother’s affidavit filed on 1 December 2017.

13. Perhaps understandably, given the history of this matter which I have outlined, the mother describes feeling quite stressed.  The maternal grandmother is unwell and the mother wishes to spend some time with her family in the UK over the Christmas period.  Because of her mother's illness she is unable to travel herself.  The mother says that seeing and reconnecting with her family would help her immensely, as would a break from the current surroundings and situation where she feels apprehensive watching for people who are seeking to do the father's bidding and affect her negatively for his benefit. The mother’s concerns are not unreasonably held, although the evidence certainly falls short of there being any current actual risk of any harm to the mother or the child.

14. However, these are circumstances where the father is in jail, there is a current order that prevents him spending any time with his child and his trial will not be heard until in or around June of next year.  In those circumstances there is really no prejudice to the father in the proposed holiday travel, and I am satisfied that the mother is not a flight risk and that she will be returning to Australia as she says she will, and, indeed, provides an Undertaking, which I accept, to return to Australia as indicated.

15. The most concerning feature of the application when it first came before me was the fact that it was being done without notice to the father. To take that step generally is an extraordinary one and that is why the matter has come back before me, with further evidence on two occasions, to enable me to be satisfied of the matters that I am required to be satisfied of by Rule 5.12 of the Rules.

16. I invited the legal representative for the mother to separate the applications that were before me, that is, by dealing with the holiday as one part and then the second application to list the child or enrol the child in school in an alias. 

17. As I have mentioned, the child is already enrolled in school in his name.  It does not seem to me that that is an application that has to be dealt with today, nor, indeed, is it an application that, in my view, needs to be dealt with on an ex parte basis. I think it is fair to say that that part of the application was not necessarily pressed which, I consider, was a sensible concession to make in the circumstances.  The mother will be returning on or about 24 January 2018.  She has booked her flights and I am satisfied that, subject to things beyond her control, that she will be returning to Australia with B on that date.

1. Given the circumstances, I propose that the material upon which the mother has relied in these proceedings, the first affidavit which was filed on 9 November 2017 and the second affidavit which was filed by leave on 30 November 2017, together with the outline of argument, not be filed in the Court or, rather, not to appear on the Court portal until after 24 January 2018. This is because the father represents himself in the proceedings in this Court and anything filed he will be notified of and may have access to the material.  Therefore, it would defeat the purpose of this application if the father were to become aware of the mother's whereabouts and travel plans before she returns to Australia.

2. Now, I have not mentioned the third affidavit which was filed by leave on 1 December 2017.  That document provides a lot of personal information relating to the mother which would identify her residence, her partner, her employer and I do not propose that that particular document be required to be served on the father. 

3. I will order that that particular document be placed in a sealed envelope not to be opened without order of a justice of this Court, and I will order that a redacted copy of that affidavit be filed with the Court after the proposed date of return of the mother.  All of those affidavits, the case outline, and the material relied upon in submissions by both the Independent Children's Lawyer and the mother, are to be served upon the father after 24 January 2018, and as soon as possible thereafter, because I propose that the second part of the application be listed before the Senior Registrar on a date to be advised in February 2018.

4. The precise order that I will make will be conditional upon the Undertaking of the mother, which will also be filed with the Court after 24 January 2018, or, rather, appear on the Court portal. 

5. I also intend for the father to receive a copy of the transcripts of the proceedings but in keeping with my earlier concerns, the father will not have access to the transcript until after 24 January 2018 and the transcript served upon him should not include any information which might identify the mother’s current circumstances.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 1 December 2017.

Associate: 

Date:  14 December 2017.