Yalpat and Yalpat

[2018] FamCA 543

FAMILY COURT OF AUSTRALIA

YALPAT & YALPAT [2018] FamCA 543

FAMILY LAW – Application to place child on Airport Watch List – consideration of risk factors going to likelihood of child’s removal – where sufficient possible risk exists – where child’s removal from Australia would constitute severe disruption

Family Law Act 1975 (Cth) – s 65Y

APPLICANT: Ms Yalpat

RESPONDENT: Mr Yalpat

FILE NUMBER: CAC 1305 of 2018

DATE DELIVERED: 23 July 2018

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 23 July 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Infinity Legal

SOLICITOR FOR THE RESPONDENT: No appearance

Orders

IT IS ORDERED, UNTIL FURTHER ORDER:

1. That the child X, born … 2017, live with the Applicant Mother.

2. That the Respondent Father be restrained from removing the child from the Applicant Mother’s care unless as agreed or ordered.

3. That until further order, or else subject to the authenticated consent of all parties required to provide consent by Part VII of the Family Law Act 1975 the Father, Mr Yalpat, born … 1979 and his servants and agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the child, X, born … 2017, from the Commonwealth of Australia and it is requested that the Australian Federal Police give effect to this order by placing the name of the child on the Airport Watch List in force at all points of arrival and departure from the Commonwealth of Australia and maintaining the child’s name on the Watch List for a period of two years.

4. That upon expiration of the period referred to in Order 3 above, and subject to any further order of a Court of competent jurisdiction, the Australian Federal Police will cause the removal of the child’s name from the Watch List.

IT IS FURTHER ORDERED THAT

1. The Registrar is to forward to the email address of the Father, as contained in exhibit W1, both the Orders made today and, on their publication, the reasons for judgment made today. 

2. The proceedings are adjourned to 10am on 10 September 2018 to enable the Father to file material and to participate on the proceedings.

IT IS NOTED THAT

1. I place the Father on notice that I may hear further aspects of his response on that occasion.

IT IS FURTHER ORDERED THAT

1. I grant the Father leave to attend by telephone on the next occasion should he choose to do so, and direct that the Father is to give the Court seven days’ notice in advance if he intends to attend by telephone.

2. In the event that the Father requires the services of a Turkish interpreter I direct that he is to advise the Court seven days in advance of the next appearance of that requirement.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Yalpat & Yalpat has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 1305 of 2018

Ms Yalpat

Applicant

And

Mr Yalpat

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This is the first return of the matter.  At present the focus of the proceedings is upon the child of the parties, X, who was born in 2017.  The parties commenced a relationship in December 2014, married in 2015 and separated in March 2018. 

2. The Mother is a citizen of Australia, the Father a citizen of Country B.  Although born in Australia, the child shortly thereafter spent six months in Country B before returning to Australia, on the Mother's account to live, with the Father to follow and join the parties to live in Australia. 

3. The Father subsequently travelled to Australia in February 2018.  On the Mother’s account there was a dispute between the parties.  She alleges abuse and the parties separated, she says, on a final basis.  The Father returned to Country B in March 2018 and remains there. 

4. The Mother commenced proceedings on 5 July 2018 and at that stage was given permission by the Registrar to serve the Father in Country B by email.  Exhibit W1 is email correspondence between Father and the Mother’s solicitor, which by reason of it constituting a response from the Father to the Mother’s solicitor’s service of material, shows that the Father is on notice of today's proceedings.  The terms of that email indicate that there will be some contest in the proceedings. 

5. Although initially the Mother sought a suite of orders, including orders relating to child support and property, she sensibly and appropriately confined the application at this stage to the child.

6. The Father did not participate in today's proceedings despite being on notice of those proceedings.  However, it must be appreciated that he labours under the difficulty of apparently currently being located in Country B. 

7. The Mother’s application today pressed a number of matters for the child, but again not even the whole suite of matters that had been foreshadowed within the application.  The orders that she seeks today are for the child to live with her and to ensure that he is not removed from Australia.  She does not press the application in relation to parental responsibility.  It would be premature within the proceedings and on the material that has been filed to deal with that issue at this stage in any event.  Again, her approach has been most sensible.

8. The issue in relation to ensuring that the child is not removed from Australia revolves around a number of allegations.  The first is that the Father has taken steps to cause the child to become a Country B citizen.  The second is that the Father has indicated that he wishes to obtain custody of the child.  The source of the material comes through a third party, Ms C, who has disclosed to the Mother that the Father had said those things to her.  None of the matters raised in relation to the Father amount so far as being a threat to remove the child from Australia.  That particular risk is disavowed by the Father in the email response that he sent to the Mother’s solicitor which indicated that he is on notice of the proceedings.

9. It should be noted that once a parenting order is made any removal of the child from the country is contrary to the provisions as set out in s 65Y of the Family Law Act 1975.

10. As to the first aspect of the Mother’s current application, on limited evidence it may be seen that the Mother has been the primary carer of the child all of his life. For a significant period of that she has been the sole carer particularly as the Father has been outside of the country in which the child is living.  Those limited facts are sufficient to justify an order that the child live with the Mother as being in the child' best interests. 

11. The early nature of the proceedings, without the Father’s participation, mean that it is premature to deal with parental responsibility and inappropriate at this stage to apply the presumption in favour of parental responsibility in the context of interim proceedings, as particularly so where the Mother does not seek to press a change to parental responsibility at this stage.

12. On the issue of removal of the child from the country, there are a number of latent risk factors.  One is the Father’s citizenship, which is Country B, the question of the child also potentially having citizenship within Country B and the Father’s indication that he will claim custody of the child.  Those are sufficient at present to justify an order preventing, temporarily, the child’ removal.  That is particularly so in the light of an unexpected visit which was made by the Father earlier this year without notice to the Mother for a short period of time whereupon he attended, again without notice, at the child’ day-care.  That speaks to his capacity to attend and potentially remove the child. 

13. I note clearly that I make no finding that he would do so, or is likely to do so, but there is a sufficient possibility of risk which if it occurs would constitute a severe disruption to the child which would not be in the child’ best interests. 

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 23 July 2018.

Associate:

Date:  24 July 2018