Uhlman and Morton (No. 4)

[2018] FamCA 991

FAMILY COURT OF AUSTRALIA

UHLMAN & MORTON (NO. 4) [2018] FamCA 991

FAMILY LAW – INJUNCTIONS – where the mother has left Australia with the child of the proceedings aged two and her son of a previous relationship aged nine – where there are current parenting order in place in respect of the child of these proceedings – where the mother’s former partner, the father of their son, gave evidence – where the mother’s former partner knew of the mother’s intention to remove the child from Australia – where the former partner was planning to meet the mother in the United Kingdom – where the former partner has been transmitting money to the mother – where the former partner denies he knows the exact location of the mother and the child – where the mother and children are travelling in a campervan purchased in the former partner’s name – injunctions made restraining the former partner leaving Australia and transferring money to the mother – order made placing the former partner on the Airport Watch List.

Criminal Code Act 1995 (Cth) pt 11.2
Family Law Act 1975 (Cth) ss 65Y, 114.

APPLICANT: Mr Uhlman

RESPONDENT: Ms Morton

INDEPENDENT CHILDREN’S LAWYER: Hartley’s Lawyers

FILE NUMBER: MLC 2173 of 2017

DATE DELIVERED: 22 November 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 22 November 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Cash

SOLICITOR FOR THE APPLICANT: Aberdeen Lawyers

THE RESPONDENT: No Appearance

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mr Robertson

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Hartley’s Lawyers

Orders

1. That until further order MR MORTON born … 1979 be restrained from leaving the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to the preceding Order by placing the name of the said Mr Morton on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain Mr Morton’S name on the Watch List.

2. That a copy of this order be sent immediately to the AFP Operations Coordination Centre by the Melbourne Registry of the Family Court of Australia and IT IS REQUESTED that the Australian Federal Police give force and effect to this order.

3. That until further order Mr Morton born … 1979 be and is hereby restrained by himself, his servants or agents from:

   (a)Transferring, remitting or depositing moneys into any credit or savings account in the name of the mother, MS MORTON also known as Ms S and Ms T (“the mother”) or into any account of which she is a signatory, trustee or has a beneficial interest or any account conducted by third parties for her benefit;

   (b)Communicating with or messaging the mother by telephone, email, text messaging, using “WhatsApp”, Facebook, Instagram or any other social media application.

4. That by 10.00am on 23 November 2018 Mr Morton deliver to the Melbourne registry of the Family Court of Australia all passports in his name including but not limited to his Australian and British passports.

5. That forthwith the mother do all acts and things as may be required to deliver the child C born … 2015 to the Child Minding room, Level 5, Melbourne Registry, Family Law Court, 305 William Street Melbourne.

6. That the father be permitted to provide to the United Kingdom Central Authority copies of:-

   (a)       These orders;

   (b)       Ex-tempore reasons for judgment delivered this day

   (c)       Orders dated 9 November 2018.

7. That all extant applications be adjourned to 10.00am on 27 November 2018.

8. That Mr Morton attend in person at the adjourned hearing on 27 November 2018.

9. That forthwith the Independent Children’s Lawyer cause a sealed copy of these orders to be served personally on Mr Morton.

AND IT IS REQUESTED that the Australian Federal Police and Interpol Canberra

forward a copy of these orders and the orders dated 9 November 2018 made by the

Family Court of Australia to Interpol City S and to the police authority in the UK.

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 Uhlman & Morton (No. 4) 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 MELBOURNE

FILE NUMBER: MLC 2173 of 2017

Mr Uhlman

Applicant

And

Ms Morton

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This matter comes before the Court today as a result of orders made by me on 12 November 2018. 

2. The proceedings before the Court relate to parenting arrangements in respect of the child, C, born in 2015 and aged almost 3 years. 

3. Pursuant to orders made on 3 August 2017, the child lives with the mother.  The father seeks orders permitting him to spend time with the child.  Orders have been orders made by the Court, as I have noted, initially on 3 August 2017 and since then, which provide for the father to spend supervised time with the child. 

Background

1. The background to the proceedings is as follows.

2. The father is aged 57 years and the mother is aged 43 years.

3. They commenced their relationship in November 2012. They married in 2013 and separated in June 2015.  As can be seen from those dates, the child, the child, was born after the parties’ separation.  The parties have no shared parenting experience and this may well provide some explanation as to their difficulty in making appropriate parenting arrangements for their daughter since their separation. 

4. In any event, what is clear from the Court file is that, certainly, since these proceedings commenced in March 2017 the father has been actively seeking the opportunity of developing a meaningful relationship with the child.  What the father submits is equally clear is that the mother has sought to do what she can to thwart the father’s efforts in that regard. 

5. The matter was allocated to my docket for listing for a final hearing, and in August 2018 I made orders in chambers listing this matter for a first-day hearing before me on 7 November 2018. 

6. It would appear from the evidence given by Mr Morton today that at about the same time those orders were made the mother commenced plans to travel overseas with the child and her other child, P, who is aged nine years.  The evidence from Mr Morton is that the mother obtained a British passport for their son, P, in about August, 2018.  It would seem that, at the same time, the mother also obtained a passport for the child. 

7. The father filed applications seeking interim orders that were listed before the Senior Registrar on 25 September 2018.  There had also been proceedings in the Magistrates’ Court of Victoria, the mother seeking an intervention order against the father in those proceedings. 

8. On the day of the hearing before the Senior Registrar, counsel was briefed to appear on behalf of the mother.  The mother did not attend at Court.  The father was also represented by counsel, and Ms Dosanjh appeared as the Independent Children’s Lawyer.  Counsel on behalf of the mother sought an adjournment of that hearing due to the mother’s alleged ill health.  She produced a medical certificate in support of the adjournment application.

9. The mother’s adjournment application was refused and orders were made by the Senior Registrar that the child continue to have supervised time with her father, such time to be supervised by Ms L who had been providing therapeutic support for the mother, the father and the child in the reintroduction of the child to her father. 

10. What the Court was not told that day was that the mother had some 3 days earlier, on 22 September 2018, departed the Commonwealth of Australia with the child and P, and had travelled to the United Kingdom.  That information was not communicated to the Court either by the mother or her counsel.  At that stage, the father had no information that the child had been taken out of Australia.

11. The matter next came before the Court for its First Day hearing, before me on 7 November 2018.  The father was represented by his solicitor.  Ms Dosanjh, again appeared as the Independent Children’s Lawyer. 

12. The mother did not attend that Court hearing.  At that stage, it was still not known that she had left the country.  That day I made orders for an urgent recovery order to issue in respect of the child.  I made orders that there be substituted service of the Court documents and those orders on Mr Morton, with a request that he bring the proceedings to the mother’s attention.  I also made orders restraining the removal of the child from the Commonwealth of Australia and that the child be placed on the Airport Watch List. 

13. Orders were also made that the mother personally attend at the adjourned hearing date, being 9 November 2018, and that the child be delivered to the Court on that occasion and placed in the child-minding centre located in the court building. 

14. On 9 November 2018, the mother again did not appear and the child was not delivered to the Court.  That day, I adjourned the proceedings to 10.00 am on 16 November and I caused a warrant to issue for the mother’s arrest. 

15. Following the making of those orders the father’s lawyers received notification from the Australian Federal Police that, in fact, the mother and the child had left the Commonwealth of Australia on 22 September 2018.    

16. On 12 November 2018 the matter was relisted before me.  I gave leave to the Independent Children’s Lawyer and the father’s lawyer to issue subpoenae to produce documents to the mother’s banks and her conveyancing lawyer, and a subpoena to give evidence directed to Mr Morton, all returnable today.

17. The matter was again mentioned before me on 13 November 2018, and that day I gave leave for the father’s lawyer to issue a subpoena to give evidence directed to the mother’s friend, Ms T. 

18. On 14 November 2018 I gave leave for further subpoenae to produce documents to be issued to the Department of Home Affairs and U Pty Ltd.  The return date of the subpoena issued is today. 

Evidence of Mr Morton

1. Mr Morton has attended at Court today and given evidence, both in response to questions by counsel for the father, as well as counsel for the Independent Children’s Lawyer.  I, too, have asked him questions as to his knowledge of the mother and the child’s whereabouts. 

2. It is clear from Mr Morton’s evidence that he had prior knowledge of the plans of the mother to remove the child from the Commonwealth of Australia.  It is also evident from his oral evidence that he intended to join the mother, the child and P in the United Kingdom, and it was his intention to depart from Australia tomorrow. 

3. Mr Morton has given evidence that he has been transmitting money to the mother, that he has been engaged in a complex series of transactions involving the transfer of the mother’s property at N Street, Suburb O (“Suburb O property”) to him and has seemingly acquired that property for no consideration. 

4. It is submitted on behalf of the father that this is a ruse and that the property transfer is an arrangement between Mr Morton and the mother designed to provide her with financial support whilst she is overseas.  It was also put to Mr Morton that he has resumed a relationship with the mother, and that it was his intention to join her overseas and that he had no intention of returning to Australia.  He denies that allegation.  Given the depth of Mr Morton’s knowledge as to the mother’s plans, his involvement in providing her financial support and his intention to travel and join her I have significant reservations regarding that evidence.

5. Throughout his oral evidence I found Mr Morton to be evasive, and less than forthright.  When asked as to a contact telephone number for the mother he proffered a UK telephone number.  It was only later in his evidence that he disclosed that, in fact, the mother is at this time in the UK. 

6. Although given an opportunity to offer information at the commencement of his evidence as to his knowledge of the mother’s whereabouts, he did not disclose the fact that the mother and the children are travelling in the United Kingdom in a campervan owned by him. That information was only disclosed, reluctantly, after questions from the Bench.  It is his evidence that the mother purchased that vehicle following her departure from Australia, that the vehicle has been purchased in Mr Morton’s name, using funds provided by Mr Morton.  Notwithstanding his involvement in that transaction, Mr Morton denies any knowledge as to the make of the vehicle, the model, its registration number, or any other information that might otherwise assist authorities in locating the mother or the children.

7. It is his evidence that he has no knowledge as to the exact location of his own child, P.  He gives that evidence against a backdrop of having previously sworn affidavits in these proceedings which indicate the cooperative parenting arrangements that he enjoys with the mother.

8. Prior to the mother’s departure to the United Kingdom Mr Morton’s evidence is that he was spending time with P each week from Sunday to Tuesday, yet he expects the Court to accept that he has no knowledge of his son’s current whereabouts.  In my view, Mr Morton has been less than frank with the Court as to the extent of his knowledge as to P’s whereabouts, and, therefore, the mother’s whereabouts.

9. When asked as to the contact details for the mother’s parents, again Mr Morton’s evidence was vague and unhelpful.  He was asked questions about statements attributed to him by Victoria Police upon their attendance at the Suburb O property to conduct a welfare check on 9 October 2018.  The police notes record him having told them that the children and the mother were fine, that they had just gone down the street.  When those statements were put to Mr Morton he denied that he had made statements to that effect and that the police were mistaken.  Of course, at the time of that police check the mother and the child had already left Australia, a fact well known to Mr Morton. 

10. Mr Morton in his oral evidence confirmed that it was his understanding that the mother’s intention was to remain in the United Kingdom with the child indefinitely.  Mr Morton conceded that he had deleted emails from the mother regarding the acquisition of the campervan vehicle.  It is his evidence that he has been communicating with the mother since her departure from Australia on an almost daily basis. 

11. It would seem having regard to his evidence, and I am satisfied, that Mr Morton is possessed of knowledge and is in a position to assist the Court in ascertaining the whereabouts of the mother and the child.

Evidence of Ms T

1. Ms T also gave evidence today in relation to her knowledge as to the mother’s current whereabouts.  It is her evidence that she has no current knowledge of the mother’s location.  She became aware, she says, of the mother’s intention to travel overseas to the United Kingdom on the date of the mother’s departure on 22 September 2018.  She gave evidence that she had had a telephone conversation with the mother when the mother was at the departure lounge at Melbourne Airport that day. 

2. When questioned as to her attendances on the Suburb O property and evidence of others that she had been collecting mail for the mother, she indicated that she had collected mail from the mother’s home prior to her departure to the United Kingdom, that this was a one-off arrangement, but that she had regularly been attending that property to feed the mother’s pets.  Ms T confirmed that she was aware that the mother had applied for passports for the children in August 2018. 

Discussion

1. There are current parenting orders in place in respect of the child.  There were current parenting orders in place at the time of the mother’s departure from Australia to the United Kingdom with the child. 

2. Section 65Y of the Family Law Act 1975 (Cth) (“the Act”) is clear as to the obligations of parents who have children, the subject of orders of this Court. It provides as follows:

   (1) If a parenting order to which this Subdivision applies is in force, a person who was a party to the proceedings in which the order was made, or a person who is acting on behalf of, or at the request of, a party, must not take or send the child concerned from Australia to a place outside Australia except as permitted by subsection (2).

   Penalty:  Imprisonment for three years.

3. The exceptions to that provision as set out in subsection (2) of s 65Y of the Act are not applicable in this instance, as it is clear that there was no prior consent from the father, or an order of the Court permitting the removal of the child from the jurisdiction.

4. In my view, it is clear from the evidence of Mr Morton that he had prior knowledge of the mother’s intention to remove the child from the jurisdiction, that he assisted her in that course and that he has continued to assist her by providing her with funds to enable her to live and also to purchase a motor vehicle.  It was his intention to travel to meet with her, departing tomorrow. 

5. The mother’s actions in removing the child from Australia without the father’s consent or Court order represent a serious breach of her parenting obligations which may attract a significant penalty.  They are actions which are also likely to have a significant impact on the child, as well as P, who are now, effectively, children on the run with the mother, who have no fixed address, and are living a life where their mother will be looking over her shoulder, wondering when the authorities will catch up with her.  That is the position currently, and that will continue to be the position until she is returned to Australia. 

6. I am satisfied, having heard his evidence, that Mr Morton may well be in a position to assist the Court in locating the mother.  That is a circumstance which I am satisfied supports the making of injunctions until further order to restrain Mr Morton from leaving the Commonwealth of Australia, from transferring moneys or depositing moneys into the mother’s account and providing her financial assistance.  I think it is also appropriate that Mr Morton be restrained from communicating with the mother, or permitting other people to do so on his behalf.

7. Further I am satisfied that it is appropriate to make an Airport Watch List order so that he is registered on all exit points within the Commonwealth of Australia, to ensure that he does not attempt to leave this country until such time as the matter next comes before the Court. I am satisfied, having regard to the provisions of s 114(3) of the Act as well as the provisions of section 65Y of the Act in conjunction with the Criminal Code Act 1995 (Cth) at Part 11.2, that such injunctions are appropriate.

8. What I propose to do is adjourn these proceedings to 10.00am next Tuesday, 27 November 2018.  That will afford Mr Morton the opportunity of obtaining some independent legal advice as to his position in relation to these matters. 

9. I also understand that there are a raft of other applications filed on behalf of the father that may or may not be pressed at that time.  The adjournment to that date will afford the father’s counsel some opportunity to consider carefully all of the orders sought, and the various documents that have been filed, and to identify which of them are appropriate in the circumstances of this case, or alternatively should be withdrawn at that hearing.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 22 November 2018.

Associate: 

Date:  22 November 2018