Yuan and Song

[2019] FamCA 95

FAMILY COURT OF AUSTRALIA

YUAN & SONG [2019] FamCA 95

FAMILY LAW – INJUNCTIONS –  the mother asserts the father removed the child from Australia to Country E without her knowledge or consent – where the father filed court documents whilst overseas and remains outside of Australia – where there was no appearance by the father – where the mother seeks a Recovery Order to find and recover the child – where mother sought access to funds held on trust by father’s solicitor to fund the recovery of the child – injunctions made restraining the father and the child from leaving Australia – order made placing the child on the Airport Watch List – Recovery Order made in relation to the child – order made for the father to return the child to Australia –  order made releasing trust money to mother’s solicitors.

Family Law Act1975 (Cth) s 67U

APPLICANT: Ms Yuan

RESPONDENT: Mr Song

FILE NUMBER: MLC 8050 of 2015

DATE DELIVERED: 8 February 2019

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 8 February 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Ms Dhanapala
SOLICITOR FOR THE APPLICANT:	InTouch Legal Centre

THE RESPONDENT: No Appearance

Orders

1. That the husband MR SONG born … 1959 and his servants and/or agents be restrained by injunction from leaving the Commonwealth of Australia or taking or sending or attempting to take or send the child X born … 2010 (“the child”) from the Commonwealth of Australia.

2. That the Marshal 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.

3. That the Court requests that the Australian Federal Police place the names of the child and the respondent on the airport watch list at all points of international arrivals and departures in Australia for the purpose of preventing removal of the child from Australia in breach of these orders.

4. That pursuant to s 67U of the Family Law Act 1975 a Recovery Order issue authorising/directing the Marshal, all officers of the Australian Federal Police and all officers of the police forces of all States and Territories of the Commonwealth of Australia, with such assistance as may be required, and if necessary by force to:-

   (a)Find and recover the child X born … 2010 (“the child”) and deliver the child to the mother MS YUAN to such address in the State of Victoria as the mother and the person effecting such recovery deems to be appropriate;

   (b)       To stop and search any vehicle, vessel or aircraft; and

   (c)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.

5. That the sum of $20,000 held in trust by B Lawyers be released to the mother’s solicitors, Intouch Legal Centre.

6. That by 28 February 2019 the father do all acts and things as may be required to cause the child to be returned to the Commonwealth of Australia.

7. That all extant applications be adjourned for further mention before Johns J at 9.30am on 4 March 2019.

8. That both the applicant and the respondent personally attend at Court on the adjourned date.

AND THE COURT NOTES that in the event of the respondent’s failure to attend at Court on the adjourned date, the Court will make trial directions for the matter to be fixed for final hearing in relation to property matters, on the basis that the hearing shall proceed on an undefended basis.

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 Song & Yuan 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 MELBOURNE

FILE NUMBER: MLC 8050 of 2015

Ms Yuan

Applicant

And

Mr Song

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This matter comes before the court today pursuant to orders made by me on 23 November 2018.  Those orders made provision for both the applicant mother and the respondent father to file further material in support of their applications, the mother’s material to be filed by 20 December 2018 and the father to file material in response by 17 January 2019.  Further, I made orders that both the applicant and the respondent personally attend at court for today’s hearing.  I also extended time for the father’s compliance with orders previously made requiring him to file a financial statement. 

2. I also made an order that in the event that the respondent failed to comply with paragraphs 4 and 5 of the orders of 23 November 2018 and he had been given notice of final orders sought by the applicant, she may seek to proceed with her application on an undefended basis at the adjourned hearing. 

3. In compliance with my orders, the applicant did file an application in a case and affidavit in support on 20 December 2018.  In her application, she seeks a raft of orders.  I am informed today that there are four categories of orders that are sought to be pressed at this time. 

4. The first of those categories is set out at paragraphs 2, 3 and 4 of the application.  They are orders the effect of which will be to restrain by injunction the father from leaving the Commonwealth of Australia or from attempting to remove the child from the Commonwealth of Australia. 

5. The second category of order is a recovery order pursuant to section 67U of the Family Law Act1975 (Cth) (‘the Act’). The mother seeks orders that the Australian Federal Police find and recover the child.

6. The third category of orders sought is that the sum of $20,000 currently held in trust for the parties by B Lawyers be released to the applicant’s solicitors, InTouch Legal Centre.  That order is sought to enable the mother to access funds to assist her in locating and obtaining the return of the parties’ child to this jurisdiction. 

7. Finally, I am asked to make an order requiring the father to return the child to Australia. 

8. The respondent has filed material in response to those applications, albeit that that material was not filed within the timeframe provided in my orders made 23 November 2018. 

9. He has filed Responses to Application in a Case on 21 January 2019, 1 February 2019 and 7 February 2019.  The orders sought by the respondent in his response filed 21 January 2019 include:-

   ·       Orders that the original final parenting orders made by the Federal Circuit Court in 2016 granting the respondent sole parenting rights “be reinstated”;

   ·       That the respondent have the ability to undertake international travel with the child without the consent of the applicant.  That is a curious application in circumstances where the respondent has already undertaken international travel without consent and remains overseas with the child, notwithstanding these proceedings and orders requiring him to attend court this day;

   ·       Orders for divorce;

   ·       Orders for child support for the child; and

   ·       Orders that the mother make financial disclosure. 

10. The respondent also seeks the return of the $20,000 held by B Lawyers on behalf of the parties.  In his response filed 1 February 2019, the respondent asks the Court for orders in identical terms, save that he also seeks an order as follows: 

    To disregard and dismiss all final and interim orders the applicant is seeking in respect of property and real estate settlement, particularly her requests made in her applications for orders sought in paragraphs 1 to 7 in relation to, my real estate properties at [Suburb C] and [D Street]. 

11. In his most recently filed response, that is the one filed 7 February 2019, the respondent seeks orders as follows:

    (i)To retain all the orders I seek in my last affidavit and in my response to an application in a case filed on the 1^st February 2019.

    (ii)To dismiss the application filed by the applicant, on the basis that the child and the respondent are now “habitual residents” in a foreign jurisdiction.

12. The orders that I made in November 2018 required that both parties personally attend court this day.  The respondent was called at the commencement of the day and did not answer the call.  He does not have a lawyer present at court in respect of these matters.  He has not complied with that order.  There is some hint as to his position and attitude with respect to these proceedings contained in his affidavit filed 7 February 2019.  At paragraph 1 of that affidavit he notes that the request for him to attend by telephone link was refused.  He makes a statement as follows:

    (i)I declare my natural justice will be severely compromised due to the rejection as I won't be able to attend personally on the 8^th  and an undefended hearing will held [sic] without my defence.

    (ii)The orders for a possible undefended hearing should I don’t attend personally on the 8^th hearing was made at the last hearing in December but the orders were made at my absence [sic].

13. I note that in fact the hearing occurred before me on 23 November 2018.  He then continued:-

    (iii)However, my absence was not my fault because the court registry notified me for the December hearing only just three days prior to the hearing date.  I’m retired in overseas, as the court knows, and it is simply impossible for me to make my arrangement to travel and to prepare my defence [sic].  So the procedural orders regarding the date of the 8^th February hearing and a personal attendance were made without consulting me and have not considered the fact I’m retired in overseas [sic].

    (iv) I oppose the necessity of a personal attendance because the date overlaps the Chinese New Year holiday which is a big thing here and I have my family commitments and I have severe financial hardships to afford travel and the related costs in eg hotel expenses [sic].

    (v)Our constitution grants me the right and freedom for speech, and everyone is the same before God,  By denying my right to express my opinions using a practically easy way to speak, eg a tele link up, and a commonly used way by the Court, I question the necessity denying my tele link up [sic]. 

    (vi)Given that there is no any prohibition orders, in fact, there is no any orders against me until this moment, I question the necessity for me to attend personally, particularly to consider the above reasons [sic].

14. In order to understand the position of the Court in relation to these matters, it is necessary to provide some background. 

15. The mother is aged 37 years.  The father is aged 59. 

16. The parties commenced their cohabitation in about 2008 according to the mother, or in 2008/2009 according to the father.  The parties married in March, 2014.  There is a dispute between the parties as to the date of their separation. 

17. There is one child of the relationship, X, who is aged eight years. On 23 February 2016, Judge O’Sullivan of the Federal Circuit Court made final parenting orders which provided for the father to have sole parental responsibility for the child and for the child to live with him. The mother’s time with the child was to be as agreed between the parties. The mother did not appear at the hearing at which those orders were made. The notation to those orders provided that pursuant to Rule 16.05 of the Federal Circuit Court Rules 2001 (Cth), the mother may seek leave to set aside these orders upon her filing an application, an affidavit setting out her failure to attend Court and why these orders are not in the child’s interests.

18. The mother in fact did file an application on 15 March 2018 in the Federal Circuit Court.  She then sought interim orders that the child live with her and spend time with the father.  She also sought injunctions restraining the father from removing the child from Australia and an order that the child be placed on the Airport Watchlist. 

19. On 23 March 2018, the father filed an application in a case seeking that the child be permitted to travel with him overseas for specified dates.  Orders were made by Judge Kelly on 27 March 2018 permitting such travel, it to occur on 29 March 2018, for the purpose of travel to Singapore and London and for return by no later than 19 April 2018. 

20. Order 2 of those orders is significant.  It provided that for the avoidance of any doubt the child be removed from the Watchlist for the purpose of her departure from the Commonwealth of Australia on Thursday 29 March 2018.  There was no order made reinstating the child onto the Airport Watchlist. 

21. Paragraph 3 of the orders provided for $20,000 security to be lodged by the father with his lawyers to secure the child’s return to the jurisdiction.  There was also a declaration made at paragraph 5 which is as follows:

    The Court declares that the child is a habitual resident of the Commonwealth of Australia –

    That is an unusual provision but one which was made when both parties were present at Court and seemingly it reflected what their position then was. 

22. The proceedings were otherwise adjourned to 24 April 2018. 

23. The father and the child did leave Australia pursuant to Judge Kelly’s orders.  After their return to Australia on 19 April 2018, at some time shortly thereafter, the child was again removed from the Commonwealth of Australia without the mother’s knowledge or consent.  The mother understands that the child is currently in Country E with her father. 

24. The matter came back before the Court on 24 April 2018.  That day, Judge O’Sullivan made orders that the father file and serve material.  That material was to be filed within 21 days. 

25. The matter returned to Court on 9 August 2018 before Judge O’Sullivan.  That day, the father did appear in Court.  His Honour then decided that the appropriate course was to transfer the proceedings to this Court.  The notation to those orders states:

    (a) The respondent has taken the child out of the jurisdiction to [Country E]. 

    (b)  The respondent has not complied with orders of 24 April 2018 to file a response and financial statement.

    (c) The applicant will be seeking a Departure Prohibition Order, access to $20,000.00 in trust and the return of the child to Australia.

26. That was the end of the matter before Judge O’Sullivan.  One might have thought that then was the appropriate time to make orders restraining the father from leaving the jurisdiction.  One might have thought also that then was the appropriate time to make orders for the release of the $20,000 to enable the mother to take all necessary steps to secure the return of the child to the jurisdiction.  That has not occurred. 

27. Today I am asked to make the orders that should have been made at a time when the father was within the jurisdiction of the Court and meaningful steps might have been taken to secure the child’s return to the jurisdiction. 

28. As I have noted from the affidavit filed 7 February 2019 by the father, it would seem that he has no intention at this time of travelling to Australia to attend to these matters.  It is curious that he seeks parenting orders on the one hand, yet seems to be refusing to submit to the jurisdiction of the Court in respect of other matters.  Having regard to the history of the matter, I am satisfied that it is appropriate at this time that I make injunctions restraining the father from leaving the jurisdiction in the event of his return to this country. 

29. I will also make an order in the usual form for a recovery order for the child. 

30. I am satisfied having regard to the history of this matter that it is appropriate that the funds held on trust for the parties, in the sum of $20,000, be released to the mother to provide her with a fund upon which to draw to do all things that she may to try to seek the return of the child to this country.  I am also asked to make orders that the father do all acts and things to cause the return of the child to this jurisdiction. 

31. Based on the material filed to date, the child’s life was based in Australia until her removal in 2018.  It may well be that the father has a different view of these matters.  It may well be that he wishes to put a different version of events before the Court.  However, he elects not to be present for these proceedings and although he has filed applications in the Court, he has elected not to participate in the proceedings before me.  He complains that orders were made in his absence when the matter last came before me in November 2018. At that time, the matter was adjourned to afford him ample opportunity to rectify the position and to return to the jurisdiction.  He has elected not to do so. 

32. Therefore, I am satisfied that it is appropriate that I make an order that he and the child return to the Commonwealth of Australia and that such return be effected by 28 February 2019.  What I will do is otherwise adjourn the proceeding for mention before me to 4 March at 9.30am at which time I will require the attendance of both parties.  In the event that the husband does not attend on that occasion, I will be making trial directions for the matter to be fixed for final hearing in relation to property matters and those matters will proceed on an undefended basis.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 8 February 2019.

Associate: 

Date:  8 February 2019