Upton and Upton

[2009] FamCA 36

FAMILY COURT OF AUSTRALIA

UPTON & UPTON [2009] FamCA 36

FAMILY LAW – INJUNCTIONS – Ex parte and Interlocutory – Airport Watch List

Family Law Act 1975 (Cth)

APPLICANT: Mr Upton

RESPONDENT: Ms Upton

FILE NUMBER: MLC 96 of 2009

DATE DELIVERED: 8 January 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: 7 January 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: IN PERSON

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: NO APPEARANCE

SOLICITOR FOR THE RESPONDENT:

Orders

1. That the husband have leave to proceed with the application this day in the absence of service upon the wife.

2. That the application in a case seeking interim orders be adjourned to 11.30am on 14 January 2009 before me.

3. That the husband serve the mother with copies of the said application, the affidavit in support of that application and a copy of these orders as soon as practicable.

4. That until further order each party, MR UPTON born … September 1973 and MS UPTON born … July 1978 their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the child … born … May 1997 (female) from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this Order by placing the name of the said child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch List until the Court orders its removal.

5. That reasons for judgment be given in due course.

IT IS NOTED that publication of this judgment under the pseudonym Upton & Upton is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 96  of 2009

MR UPTON

Applicant

And

MS UPTON

Respondent

REASONS FOR JUDGMENT

1. This application came before me just on 5.00pm on 7 January 2009.  It is an application by the husband to proceed in the absence of notice to his former wife for a recovery order as well as Airport Watch orders and injunctions.

2. The husband filed an affidavit in support of the application.  In that application he said that he had made an arrangement with his former wife for the child to spend some time with her mother during the holidays and that contrary to the agreement, when the period of time had expired, the child was not returned. 

3. The husband told me that his former wife still holds British passports and has not been happy or financially successful including having a relationship with her boyfriend break down and he uses that sort of information in his affidavit as an indication that he thought that his former wife might try to run to England.

4. When I questioned him a little further, he indicated that his daughter had said something recently about her mother returning to Britain.  That is not in evidence.

5. In the course of discussion, the husband said that he had been told that the Department of Human Services had received some allegations against him although he knew not what they were.  All of that adds to the mysterious intrigue.

6. Having regard to that comment by the applicant, together with the age of the child, I declined to make a recovery order in the absence of notice to the wife.  This file has a substantial litigious history in this Court so there is something unusual about what has occurred. 

7. As a precaution however notwithstanding some reservations, I have made the Airport Watch List order but ordered the service of the documents and the order upon the wife.

8. The husband told me that he had been out to his former wife’s home and the blinds were drawn and there was mail in the letterbox.  That does not necessarily mean that she has done anymore than gone away having regard to the fact that it is holiday time but the husband points to the fact that there was a specific agreement for the child to spend only some days with the wife.  For that reason, I declined to make the recovery order but rather to have the matter brought back to see just exactly what the problem is really all about.

9. On the basis of the evidence of the British passports, and as it will not prejudice the wife having regard to the time involved between now and the return date, I propose to make an order for the addition of the child on the passport watch list order and restrain both parents from removing her from Australia without further order of the Court.  It is to be noted that these orders have been made previously in the litigation between the partis and they discharged those orders in approximately 2004 by agreement.

10. I have made it abundantly clear to the husband that he needs to serve the documents so that there can be an opportunity for the matter to be properly investigated.

I certify that the preceding Ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  15 January 2009