Wilston and Farrugia (No 2)

[2015] FamCA 832

FAMILY COURT OF AUSTRALIA

WILSTON & FARRUGIA (NO 2) [2015] FamCA 832

FAMILY LAW – CHILDREN – Ex parte hearing – Where ex parte orders were previously made placing the names of the children on the Airport Watchlist – Where the father is incarcerated in Country F – Where it is not clear whether the father is aware of the proceedings despite documents being sent by courier – Orders made in the same terms as those previously made preserving the children’s present position in Australia until the father can be heard – Matter adjourned

Family Law Act 1975 (Cth)

APPLICANT: Ms Wilston

RESPONDENT: Mr Farrugia

FILE NUMBER: BRC 8154 of 2015

DATE DELIVERED: 18 September 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 18 September 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Schultz Toomey O’Brien Lawyers

Orders

IT IS ORDERED UNTIL 9.00 AM ON 14 OCTOBER 2015 THAT:

1. This application proceed urgently ex parte pursuant to Rule 5.05(4), 5.12 and 5.13 of the Family Law Rules 2004.

2. The Respondent Father, Mr Farrugia (male) born … 1959, his servants and/or agents be restrained and are hereby restrained from attempting to remove or causing or permitting the removal of the children, B (female) born … 2008 and C (female) born … 2012, from the Commonwealth of Australia.

3. The children, B (female) born … 2008 and C (female) born … 2012, be and are hereby restrained from leaving the Commonwealth of Australia.

4. It is requested that the Australian Federal Police give effect to the preceding order by placing the names of the said children on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watchlist until 9.00 am on 14 October 2015.

5. The Marshal of the Family Court of Australia and the Commissioner and all federal agents of the Australian Federal Police and officers of the police forces and services of the various States and Territories are required and empowered to take all necessary steps to give effect to these Orders.

6. Upon expiration of the period referred to in Order 4 hereof and subject to any further order of a court of competent jurisdiction, the Australian Federal Police will cause the removal of the children’s names from the Watchlist. 

IT IS FURTHER ORDERED UNTIL FURTHER ORDER THAT:

1. A Recovery Order issue addressed to the Marshal of the Family Court of Australia and to all Officers of the Australian Federal Police Force and to all Officers of the Police Forces of all the States and Territories of Australia, which is to lie in the Registry until written notice is received, on affidavit from the Applicant Mother requesting its issue on the grounds of the children having been removed from her care without consent, with the following particulars:

   a.Such persons are authorised and directed to find and recover the children, B (female) born … 2008 and C (female) born …, and for that purpose, with such assistance as they require to stop and search any vehicle vessel or aircraft and to enter and search any premises or place in which there is, at any time, reasonable cause to believe that the children may be found;

   b.The said children are to be delivered to the Applicant Mother, Ms Wilston, D Street, Suburb E, in the State of Queensland or to such other address as agreed to between the person executing the Recovery Order and the Applicant Mother.

2. The Recovery Order remains in force until 9.00 am on 14 October 2015.

IT IS ORDERED THAT:

1. The Applicant Mother’s Application in a Case filed on 25 August 2015 be adjourned before the Honourable Justice Kent at 9.00 am on 14 October 2015 at the Family Court of Australia, Brisbane Registry.

2. Leave is given to the Respondent Father to re-list the matter on the giving of forty-eight (48) hours notice in writing to the other party.

3. The Applicant Mother cause the Respondent Father to be served forthwith with the Application and her affidavit both filed on 25 August 2015, together with the Orders made on 27 August 2015 and the Orders made today.

NOTATION:

A.If after the expiration of the period set out in Order 4 above any parent seeks that the children’s names remain on the Watchlist for a period beyond the period specified that party must file and serve an application and an affidavit setting out the evidence which supports that application in the Family Court of Australia or the Federal Circuit Court of Australia. 

IT IS NOTED that publication of this judgment by this Court under the pseudonym Wilston & Farrugia (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER:  BRC 8154 of 2015

Ms Wilston

Applicant

And

Mr Farrugia

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. On 25 August 2015, I made urgent orders on an ex parte basis in this matter placing the names of the two children the subject of the proceedings on the Airport Watchlist and associated orders to restrain them from being removed from the Commonwealth of Australia.  I need not repeat what is set out in my Reasons delivered on 25 August 2015 for making those orders but I incorporate them in these Reasons.

2. One of the orders was that the applicant forthwith effect service upon the respondent of the application and supporting affidavits.  As is recorded in my Reasons, the respondent is currently incarcerated in Country F, but the mother fears, because of what is said to be his connections in Country F, that notwithstanding his incarceration, the father may be able to have agents remove the children from the mother’s care.  Those were the reasons essentially for the orders then being made unusually without notice to the respondent and in his absence. 

3. The orders were expressed to be in effect until 9.00 am today on the basis that it was anticipated that the respondent would be served and would have an opportunity to be heard today.  In the event the further material relied upon by the applicant mother does not demonstrate clearly that the proceedings have yet been brought to the respondent father’s notice.  It would seem from information relayed from the bar table that the respondent father is aware that the mother and children have not returned from Australia to Country F as he would have anticipated, but otherwise the material does not allow for the conclusion that the respondent has proper notice of the proceedings or the content of the material in support of them.

4. In these circumstances, it seems to me that for the same reasons delivered on 25 August 2015, there ought be temporary orders at least, in the interests of these children, preserving the present position until the respondent father can be heard.  For these reasons, I make orders in terms of the orders that I made on 25 August 2015 to subsist until 9.00 am on 14 October 2015.  I will otherwise formally order that the application and the proceedings be adjourned until 9.00 am on 14 October 2015.

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 18 September 2015.

Associate:

Date:  21 September 2015