Wakely and Enell

[2007] FamCA 1023

FAMILY COURT OF AUSTRALIA

WAKELY & ENELL [2007] FamCA 1023

FAMILY LAW – CHILDREN – Application by husband without notice fearing that the wife may remove their daughter from the Commonwealth of Australia.  Orders made protecting the situation until further order.

APPLICANT: Mr Wakely

RESPONDENT: Ms Enell

FILE NUMBER: DGC 3554 of 2007

DATE DELIVERED: 28 August 2007

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Guest J

HEARING DATE: 28 August 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

Orders

1. That until further order the husband do spend time with the child born December 2004 upon such terms and conditions as may be agreed between the parties or ordered by the Court.

2. That until further order the husband and wife by themselves, their servants or agents be and are each hereby restrained from removing, attempting to remove, or causing or permitting the removal or attempted removal of the child born December 2004 from the Commonwealth of Australia AND IT IS FURTHER ORDERED that the Australian Federal Police place 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 further order of the Court.

3. That the Australian Federal Police Operations Coordination Centre (AOCC) at AFP Headquarters, Canberra give force and effect to this order.

4. That the Form 2 Application of the husband filed this day (incorrectly stamped as filed on 29 August 2007) be adjourned for hearing in the Judicial Duty List at 10.00 am on 6 September 2007.

5. That the husband do forthwith personally serve upon the wife a sealed copy of the said Application and his Affidavit (sworn 27 August 2007) together with a sealed copy of the order made this day.

6. That the wife do file and serve any application in response and affidavit or affidavits upon which she may seek to rely not later than 5 September 2007.

7. That the preparation of the orders be expedited.

8. That the ex tempore judgment delivered this day be transcribed and when transcribed a copy be placed on the Court file and made available to the parties.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Guest delivered this day will for all publication and reporting purposes be known as Wakely & Enell.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGC 3554  of 2007

Mr Wakely

Applicant

And

Ms Enell

Respondent

REASONS FOR JUDGMENT

1. This matter comes before me as an application without notice brought by the husband filed 28 August 2007, albeit that the application is incorrectly stamped as being filed on 29 August 2007.  By that application the husband seeks an order to restrain his wife from removing or attempting to remove their daughter born in December 2004, from the Commonwealth of Australia.  He seeks further and other facilitating orders.  By way of final orders he seeks an order, in general terms, that he spend "reasonable access" with the said child.  The application itself is somewhat brief as is his affidavit in support.  That is not meant by way of criticism. 

2. By way of background, the husband was born in May 1963 in the United Kingdom and works in the professional services industry by occupation.  The wife was born in April 1966 in Melbourne and works with children.  The parties met, as I understand it, in the United Kingdom in about September 2000 and following a short courtship they married in April 2002 in the United Kingdom.

3. The parties then emigrated to Australia in early 2003 and following unhappy differences between them, separated on 1 September 2005.  There is one child born of their union to whom I have earlier referred, namely, a daughter who is nearly three years of age.  This child currently lives with the wife. 

4. In his affidavit, the husband deposed that upon their marriage in May 2002 they made plans to emigrate to Australia.  He pointed out that the wife was born in Melbourne and held an Australian passport as well as a British passport.  Accordingly, he was able to migrate under the partner migration laws.  I am informed by the husband from the bar table that he currently holds a Class 309 Provisional Permanent Residence Visa, and has made application to the relevant authorities for permanent residence. 

5. The husband deposed that one of the major reasons for moving to Australia was to “commence a family”.  They firstly visited Sydney and finally settled outside Melbourne in February 2003.  He said that both he and the wife believed it was a "much better place to raise" their daughter than in the United Kingdom.  Ultimately, the parties settled in regional Victoria and the child was born about a year after their arrival.  The husband informed me that they separated in September 2005.  In his affidavit he deposed that since the separation there was an informal agreement in place that he spend time with the child for no less than one day per week.

6. The husband said that this agreement had been revoked on a "couple of occasions" by the wife, but generally reinstated within a short period of time.  He last saw the child on 23 July 2007.  In his affidavit, the husband referred to a Statutory Declaration of the wife to IMMI, dated 30 May 2007, and a subsequent Statutory Declaration dated 2 August 2007 revoking in effect, if I may put it in that simplistic manner, the declaration earlier made by her.  I have received copies of those two Statutory Declarations and I mark the copy of the Statutory Declaration the wife declared on 30 May 2007 Exhibit “A”, and the copy of the Statutory Declaration of the wife declared on 2 August 2007 Exhibit “B”.  I direct that they remain on the court file.

7. Exhibit “A” makes it clear that there was an informal agreement between the parties that the child spend a 24-hour period once per week with her father.  The wife went on to declare the following:

   "At the moment this is usually from early evening Monday until early evening  Tuesday.  I am unable to comment on the long-term nature of this agreement.   This is because I am financially ruined as a result of being married to [the husband] and am considering returning to live in the UK where I can receive support from family while I restart my career from scratch.  Naturally, if I decide to return, [the child] will accompany me to England.  We have no relatives in Australia."

8. In the course of that Statutory Declaration, (Exhibit “A”), the wife makes a number of assertions about the husband and the failure on his part to pay adequate or proper child support for their daughter and suggests directly that he is in receipt of undisclosed income.  She declared that it was her belief the husband withheld true information about his earnings in order that his child support obligations would be reduced.  She declared that he was not fulfilling his parental responsibility.

9. Apparently this Statutory Declaration came about as a result of a request made by a Ms D who is the husband's case manager at the Department of Immigration.  It is part of a process for the husband to seek permanent residence.  The declaration is somewhat convoluted in its terms, but the central thrust was to recognise that there was an informal agreement between the two parents concerning the husband spending time with his daughter. 

10. However, things changed and in her Statutory Declaration 2 August 2007, (Exhibit “B”) the wife declared that the informal agreement she described no longer existed as the husband: "does not have access to [the child]".  She then deposed that she would consider reinstating the informal agreement subject to three conditions which are set out in the declaration.

11. The husband’s application itself has an attraction, yet it does have its own difficulties.  In his affidavit in support, the husband relied upon four points.  Firstly the terms of the Statutory Declaration of 30 May 2007 that the wife may have to return to the United Kingdom to receive financial support from her family.  Secondly, that the wife informed him in a telephone conversation on an unknown day, but in August 2007 that she had no intention of moving back to the United Kingdom.  She accused him of wanting to return and make it appear that she had forced him to do so.  The husband deposed however, and made it clear that he has no intention or desire to return to the United Kingdom.  When I sought some explanation for that particular paragraph from the husband as to its relevance and impact, he informed me from the bar table that in fact the wife “would say things (to him) that were the opposite of what she intended”.  I found his explanation somewhat serpentine and difficult to follow.

12. The third point upon which he relied is that the wife informed him in a voicemail message on 24 August 2007, that her mother was going to pay for flights for both her and the child to return to the United Kingdom around "Christmas 2007 for a holiday".  The fourth point relied upon by the husband was that he was informed by the wife through an SMS message on 27 August 2007, in response to a question of when he would next spend time with the child, that "[the child] and I are on holiday this week".  The husband deposed that the wife will remove the child from Australia without his permission or consent and fears that she may in fact already have left the county.

13. In the course of his submissions from the bar table, the husband informed me that the wife lived in regional Victoria.  He said there was a gate which was electronically controlled and he, without breaking the electronic device, would be unable to gain access to the house.  In so far as the collection and return of the child in the past has been concerned, he informed me that the wife had met him at the gate.  He conceded that his child support payments were "very low" at the moment, amounting to some $30 per calendar month, but claims that he is paid up to date.

14. This is an application brought pursuant to rule 5.12 of the Family Law Rules 2006, being an application without notice.  I am satisfied, in the light of the affidavit of the husband and his submissions from the bar table, that he holds a genuine fear that the wife may be returning to the United Kingdom without notice to him.  It seems to me that there are other issues that need to be worked out including a more regular routine, if it is to be appropriate, for the husband to spend time with the child rather than the loose arrangement that have taken place to date which, on what the husband has deposed before me, has had some difficulties in any event.

15. The parties may benefit from having the assistance of mediation and/or a family consultant.  I propose to make an order in the usual terms placing the matter on the Watch List, and I will adjourn the husband's Form 2 Application for hearing in this list at 10 am on 6 September 2007.

16. I am concerned to ensure that the wife is provided with sealed copies of the husband’s application and affidavit in support and of the orders I propose to make.  In order to effect that, I will order the husband forthwith serve personally upon the wife a sealed copy of the relevant documents.  He has informed me that the wife takes the child to a kindergarten and that he would be in a position to serve the documents personally upon her this coming Thursday.  In the event that the wife proposes to file and serve any application in response or affidavit or affidavits in reply, then she may do so not later than 5 September 2007.

17. I will expedite the preparation of the order, and direct that the extempore judgment delivered this day be transcribed and placed on the court file. 

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Guest.

Associate: 

Date:  5 September 2007.