Wilston and Farrugia (No 3)

[2015] FamCA 865

FAMILY COURT OF AUSTRALIA

WILSTON & FARRUGIA (NO. 3) [2015] FamCA 865

FAMILY LAW – CHILDREN – Interim – Where the father is incarcerated in Country F but appears to have been served with documents relevant to these proceedings – Where the father has thus far failed to participate in the proceedings – Orders previously made on an urgent ex parte basis with liberty to apply – Due to the father’s failure to participate and the state of evidence before the Court, orders made on an interim basis for the children to remain in Australia with the mother, the names of the children be placed on the Family Law Airport Watchlist for a period of two years, and a recovery order lie in the Registry – Leave for the parties to re-list the matter with 48 hours notice – Matter adjourned for directions before a Registrar.

APPLICANT: Ms Wilston

RESPONDENT: Mr Farrugia

FILE NUMBER: BRC 8154 of 2015

DATE DELIVERED: 14 October 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 14 October 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Tondelstrand, Schultz Toomey O’Brien Lawyers

THE RESPONDENT: No appearance

Orders

IT IS ORDERED UNTIL FURTHER ORDER THAT:

1. 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.

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

3. 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 for a period of two (2) years.

4. 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.

5. Upon expiration of the period referred to in Order 3 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. 

6. UNTIL FURTHER ORDER 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 … 2012, 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.

IT IS ORDERED THAT:

1. The proceedings be adjourned before the Registrar to a date to be fixed for a directions hearing.

2. Leave is given to the parties 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 her affidavit filed on 13 October 2015 together with the Orders made today.

NOTATION:

A.If after the expiration of the period set out in Order 3 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 3) 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. These proceedings came before the Court on an urgent ex parte basis for the first time on 27 August 2015.  The application was made by the mother of the two children in circumstances where she had travelled from Country F, where the family previously lived, to Australia and was due to return to Country F in August.  The mother had determined to separate from the father and to remain in Australia in circumstances where the father of the two children is incarcerated in Country F.

2. The orders made on 27 August 2015 were to operate until 9.00 am on 18 September 2015 on the basis that, being made on an ex parte basis, the father ought have an opportunity to be heard in respect of the proceedings and thus the orders included an order for the application to be further heard on 18 September 2015.

3. As at 18 September 2015, it was unclear as to whether or not the father had been made aware of the proceedings, albeit that the evidence established that relevant documents, in terms of the Court documents, had been forwarded by courier to Country F.  Since 18 September 2015, further efforts have been made to bring the proceedings to the notice of the father including via the firm or entity understood to be his lawyers in Country F.

4. On the affidavit evidence of the mother sworn on 13 October 2015, it seems clear enough that the father is aware of the non-return of the mother and children to Country F and, as the mother refers to the father, is aware of her email address and the telephone number and address of her parents in Australia but no contact, it seems, has been made by the father to either of those places.  It is also submitted by the solicitor for the mother that the father would be aware from the documents sent to him of the identity of the solicitors acting for the mother and their address.

5. It is, thus, something of an unknown as to whether or not the father intends to participate in the proceedings, even by an agent representative, or not.  It is of a concern, as expressed in the course of the short hearing today, that the two children of the marriage have apparently had no communication at all with the father since they travelled to Australia with their mother in July of this year.  Prior to that, it seems that they were maintaining some relationship with the father, despite his incarceration, by visits to the prison and to the father in Country F.

6. As it seems to me, whatever might be the other issues in these proceedings, it would serve the interests of these two young children that they have some opportunity to have some communication with their father and I have expressed that observation in the course of the hearing.  However, on the current state of the evidence, I do not intend to make orders with respect to communication as between the father and the children, as it is not known what is possible in circumstances where the father remains incarcerated in Country F and the children and mother are living here in Australia.

7. I therefore will extend the orders previously made by way of interim orders until further order, including the provision for the parties to have liberty to apply.  In terms of the order for the Family Law Watchlist, I will make that order for a period of two years in compliance with the requirements of the Australian Federal Police that there be such a time period stated in the order and I will again issue the recovery order to lie in the Registry pending further order.

8. Otherwise, I will order that the application be adjourned to the Registry for a Registrar to deal with the making of further directions in the matter.  As noted during the course of the hearing, it will be a matter for the Registrar to determine whether or not the matter ought proceed on an undefended basis if there is continued non-participation by the father in the proceedings in the face of evidence that he has received the Court documents.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 14 October 2015.

Associate:  JT

Date:  15 October 2015