Wattey and Fortescue

[2008] FamCA 665

FAMILY COURT OF AUSTRALIA

WATTEY & FORTESCUE [2008] FamCA 665

FAMILY LAW – CHILDREN – Watch list

Family Law Act 1975 (Cth)

APPLICANT: Ms Wattey

RESPONDENT: Mr Fortescue

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 6076 of 2008

DATE DELIVERED: 3 July 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 3 July 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms J.L. Stewart

SOLICITOR FOR THE APPLICANT: Mason Sier Turnbull

Orders

1. That until further Order, the Father by himself, his servants or agents be and is each hereby restrained by injunction from removing, attempting to remove, or causing or permitting the removal of the child, … born … July 2007 ("the child") from the Commonwealth of Australia.

2. That until further Order, the Marshall and all Officers of the Australian Federal Police and of the police forces of the various States and Territories are requested and empowered to take all necessary steps to give effect to these Orders, including all things necessary to include and retain the said child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and to maintain the child’s name on the Watch List.

3. That until further order the Father, by himself, and/or his servants or agents, be and is hereby restrained from making application for and/or obtaining a duplicate passport for the child.

4. That until further Order, the child live with the Mother.

5. That the Father have leave to bring an urgent application in respect of these orders upon short notice to the Mother and the Court.

6. That service of this Application upon the Father be dispensed with, and in accordance with the Family Law Rules 2004, substituted service thereof be effected as soon as practicable upon the Father's brother, Mr. A Fortescue, personally, of … in the said State.

7. That the Mother forthwith serve:-

   (a)       A sealed copy of these orders;

   (b)       The mother’s application filed 3 July, 2008;

   (c)       The mother’s affidavit filed 3 July, 2008;

   (d)       The affidavit of Ms R Wattey; and

   (e)A covering letter requesting these documents to be forwarded and/or brought to the attention of the father;

   by personal service upon the father’s brother at the aforementioned address.

8. That the mother’s application filed 3 July, 2008 be otherwise adjourned to 16 July, 2008 at 10.00 a.m. in the Judicial Duty List.

9. That the reasons for judgment be transcribed, placed upon the Court file and made available to the parties.

10. Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 6067 of 2008

MS WATTEY

Applicant

And

MR FORTESCUE

Respondent

REASONS FOR JUDGMENT

1. This is an application brought on an ex parte urgent basis into the duty list today.  The mother seeks a number of orders, but predominantly they relate to restraining the movement of a child who is not yet one year old from the Commonwealth of Australia.  Mr Fortescue is the father of the child, and he has not been served with this application.  I am asked to deal with the matter on an ex parte basis because of its urgency.  I have been told from the bar table by Ms Stewart of counsel that the father indicated effectively by a text message that he may still be in the United Kingdom notwithstanding what is in the affidavit.

2. It seems to me that one way or the other the matter needs some urgent attention and on that basis I see no harm in making the orders that I am making now, particularly having regard to the fact that I am dealing with a very young baby.  In a nutshell, the father and the mother lived together for a very short space of time.  The mother is an Australia citizen who went to England, met up with the father and in July 2007 gave birth to the child.

3. Having lived in England for about seven months, the father obtained employment in Spain and the parties moved there for that purpose.  The affidavit of the mother which I am relying upon says that within three or four weeks of their arrival, the employment had some problems, as a result of arguments between employer and employee.  The mother says that by the end of the first week in June 2008 the father told her that it was his intention to resign from his employment.

4. He then told her that he wanted to leave Spain.  At that point, the relationship continued to deteriorate.  The mother sets out in her affidavit that her Spanish visa will expire on 21 August and once that occurs she is obviously precluded from returning there.  Moreover her United Kingdom visa has expired.  She says that the father was aware at all times of those situations.  When the relationship came to an end she headed back to Australia.  There is some evidence to indicate that there has been dialogue between the mother’s mother and the father’s mother. 

5. That seems to indicate that the father is on his way to Australia.  There are all sorts of statements being made by people other than the father about the fact that he believes the mother has kidnapped the child and stolen his passport.  The mother’s mother says in her affidavit that the indications from the father’s mother included the fact that he had reported the mother to Interpol and that she would be arrested.

6. I am not particularly interested in any of those matters.  The fact of life is that I have an application before me in relation to a child who is within the jurisdiction of the Commonwealth of Australia and therefore the Family Law Act 1975 (Cth) (“the Act”) applies at least at this point in time. I am satisfied that it is important to ensure for his sake, that there is as little fight over the child as is possible until both parties as parents can sit down and sort this matter out. In the circumstances it seems appropriate to me that orders be made restraining any person removing the child but at this stage I propose to limit that to the father on the basis that I am presuming that the mother intends to stay in Australia.

7. Obviously orders need to be made to put the child on the airport watchlist and I propose to make those orders.  Having regard to the fact that the child is not yet one year of age, and the evidence clearly points to the fact that the mother has been the predominant parent in his life, it seems to me logical that at least on an interim basis the child should live with her and she should be responsible for his daily care and development.

8. It is very important to make the point that applications in the absence of a person and more importantly in the absence of knowledge of the application, is a breach of what the common law world knows as natural justice, but having regard to the fact that this child is so young and the parties' relationship is in turmoil, it seems to me that endeavouring to adjourn the proceedings to enable the father to be formally and properly served has its problems.  No-one seems to know exactly where the father is, and the only other contacts with him are his mother, who lives somewhere in Scotland and who moves from house to house as a carer, and his brother who lives here in Victoria.

9. I propose that the documents including these orders, and in due course a copy of the reasons for judgment this day, be served care of the father's brother, and that those documents be served personally on the brother so there can be no argument later on that they have at least been brought to his attention.  I would request but I will not make the order any more precise than that the covering letter request that the documents be brought to the attention of the father.

10. It is important also in my view for the matter not to languish, and therefore I propose to bring it back before me on 16 July in the duty list at which time the father hopefully will have received these documents and have had some legal advice. If on that day, he choses to attend, then the matter can be examined as to exactly what the parties need to sort out on an interim basis. Section 60CA of the Act sets out very clearly that in every case involving making a parenting order, I must consider the best interests of the child as the paramount consideration.

11. In this case I am satisfied that these orders albeit on an interim basis, convey that situation and particularly all of the matters that I can possibly deal with as set out in s 60CC of the Act.

12. In the circumstances I propose to make the orders as set out in the amended minute which was handed to me by counsel.

I certify that the preceding Twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  10 July 2008