WILSTON & FARRUGIA

[2015] FamCA 711

FAMILY COURT OF AUSTRALIA

WILSTON & FARRUGIA [2015] FamCA 711

FAMILY LAW – CHILDREN – Ex parte hearing – Where the mother is applying on an ex parte basis for urgent interim parenting orders in circumstances where the father is incarcerated overseas – Orders sought placing the names of the children on the Family Law Watchlist – Application granted – Ordered that the mother effect service of material and orders on the father.

Ansah v Ansah [1977] 2 All ER 638
In the Marriage of Kennedy (1993) FLC 92-409
In the Marriage of Sieling (1979) FLC 90-627
In the Marriage of Stowe (1981) FLC 91-027

Family Law Rules 2004 – rules 5.05(4), 5.12 and 5.13

APPLICANT: Ms Wilston

RESPONDENT: Mr Farrugia

FILE NUMBER: BRC 8154 of 2015

DATE DELIVERED: 27 August 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 27 August 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Schultz Toomey O'Brien

Orders

IT IS ORDERED UNTIL 9.00 AM ON 18 SEPTEMBER 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.

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.

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

1. 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 18 September 2015.

2. 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.

3. 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 … 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, S 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.

1. The Recovery Order remains in force until 9.00 am on 18 September 2015.

IT IS ORDERED THAT:

1. The Applicant Mother’s Application in a Case filed 25 August 2015 be adjourned before the Honourable Justice Kent at 9.00 am on 18 September 2015 at the Family Court of Australia, Brisbane Registry.

1. 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.

1. The Applicant Mother cause the Respondent Father to be served forthwith with the Application and her affidavit both filed on 25 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 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. By an Initiating Application filed on 25 August 2015, Ms Wilston has sought an urgent hearing of an ex parte application[1] in relation to the children B born in 2008 and C born in 2012.

   [1] Pursuant to rules 5.05(4), 5.12 and 5.13 of the Family Law Rules 2004.

2. The respondent named on the application is the children’s father Mr Farrugia.  He has not been served with the application nor does he have notice of it.

3. Briefly stated, the mother, an Australian citizen, relocated to Country F on 3 July 1998 in her employment located in Country F.  She commenced cohabitation with the respondent father in about the year 2000, and other than spending about a year in Australia in 2001 the parties resided in Country F.  They married in Country G in 2008.

4. The evidence of the mother suggests significant difficulties in their relationship during the early part of last year.  In the event, the father was imprisoned in Country F in about the middle of last year on charges of fraud or in respect of financial dealings.  He is said to be imprisoned for a term of three years, thus to about mid-2017. 

5. The mother and children travelled to Australia on 3 July 2015 for what is said to be a seven week holiday.  In the event, the mother has resolved to effect a separation from the father and is concerned as to the father’s reaction to her plans to remain in Australia with the children. 

6. The mother asserts that there is urgency about this application and indeed the need for orders to be made on an ex parte basis on fears that the father, notwithstanding his imprisonment in Country F, has the capacity to cause “agents” of his to effect the removal of the children from the mother’s care and to take them out of the Commonwealth of Australia.  The mother’s fears are said to be based on the history of the father’s conduct in Country F and she suggests he has such connections that he would be capable of bringing about the effective abduction of the children from her care and their removal from Australia.

7. Of course in this hearing and on the application and evidence of the mother nothing has been heard on behalf of the father as he is yet to have that opportunity, as to the allegations the mother advances.

8. It is well settled that an ex parte order should only be made where there is a real and urgent need to protect a person and it should remain in force only until both parties can come before the court: In the Marriage of Sieling (1979) FLC 90-627; Ansah v Ansah [1977] 2 All ER 638; In the Marriage of Kennedy (1993) FLC 92-409. Obviously enough, the onus is on the applicant for an ex parte order.

9. In this case the evidence, I have to say, is fairly thin so far as the mother’s case for urgency and for the matter to proceed on an ex parte basis, but her lawyer emphasises the lack of prejudice to the father if orders are made on an ex parte basis and there is simply an extension of the time that was to be a seven week holiday.  In short, the lawyer for the mother contends that the children’s safety should be the primary concern, and that orders for a short period at least preserve the position until the father can be heard on an application.

10. It is plain that when ex parte orders are made the court is obliged to give a respondent, that is, a person who might be adversely affected by the orders, the earliest possible opportunity to be heard: In the Marriage of Sieling (1979) FLC 90-627 and In the Marriage of Stowe (1981) FLC 91-027.

11. I therefore propose to make orders on an ex parte basis as sought by the mother, but those orders will be expressed to be in effect only until 9.00 am on 18 September 2015 when there will be an opportunity for the father to be heard in these proceedings.  I will also give the father liberty to apply in the event that he seeks to be heard at an earlier date than 18 September 2015. I will also order that the mother cause the father to be served forthwith with the application and her affidavit and the orders made today.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 27 August 2015.

Associate:

Date:  27 August 2015