Abeln and Abeln

[2020] FCCA 193

FEDERAL CIRCUIT COURT OF AUSTRALIA

ABELN & ABELN [2020] FCCA 193

Catchwords:
FAMILY LAW – Parenting – best interests of the child – recovery order – where father withheld the children – where the allegations made by the father found to be unsubstantiated – where no unacceptable risk is determined.

Legislation:

Family Law Act 1975 (Cth)

Applicant: MS ABELN

Respondent: MR ABELN

File Number: DNC 21 of 2020

Judgment of: Judge Young

Hearing date: 22 January 2020

Date of Last Submission: 22 January 2020

Delivered at: Darwin

Delivered on: 22 January 2020

REPRESENTATION

Counsel for the Applicant: Ms Russell

Solicitors for the Applicant: Central Australian Women’s Legal Service Inc.

Counsel for the Respondent: In person

Solicitors for the Respondent: In person

ORDERS

1. The father to return the children [X] born … 2015 and [Y] born … 2018 (“the children”) to be collected by the mother at Sydney Domestic Airport on … 2020 at 4:30pm failing which a recovery order will issue.

2. The father to pay all the mother’s costs in respect to this application including the mother’s travel costs to and from Sydney and the children’s costs of return.

3. The mother’s initiating application of 16 January 2020 to be otherwise dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Abeln & Abeln is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 21 of 2020

MS ABELN

Applicant

And

MR ABELN

Respondent

REASONS FOR JUDGMENT

Ex-Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an application for recovery order concerning two children, [X] and [Y], who are four and ... months old respectively.  There is an existing parenting order that the children live with their mother in Town A and spend time with their father.  On 3 January or thereabouts, the father unilaterally removed the children and took them to Sydney where he is at the moment.  He says that he did so after the mother signed a written agreement that the children could live with him.  She denies that is a genuine document.  I have not been able to make any finding about the genuineness or otherwise of that document, though I notice from the father’s affidavit material recently filed that the parties were discussing different care arrangements, and maybe even the children living with the father, in September or October 2019.

3. There was also some discussion of relocation to an unidentified place but that seems to have ended in November 2019 when the mother’s lawyers wrote to the father saying that she was not willing to depart from the existing orders.

4. Nevertheless, the father has produced what he says is an agreement and, as I say, I have not reached any view about the genuineness of that.  Even on the father’s version of events, he did not inform her that he proposed to relocate to Sydney with the children.

5. It seems to me that it must have been obvious, had the father given this matter a moment’s mature thought, that what he has done was likely to precipitate a problem.  Indeed, that is exactly what it has precipitated.  I heard the matter last week.  I gave the father a few days to file affidavit material.  I hoped that, on mature reflection, and given an indication from me last week that he would voluntarily make arrangements for the return of the children. He has not done so.  Indeed, his affidavit material raises allegations of abuse of the children, not by the mother but while in her care.  He says that in September [X] told him a story about the mother and a girl named [B] taking her for a long drive to “another man’s house and then sleeping on the man’s bed and the man growling at them” and so on.

6. Now, whatever that means is unclear, if it means anything.  The father reported that to the police and also Territory Families.  He told me that the police have interviewed the children nothing was disclosed and the police have not taken the matter any further.  Similarly, Territory Families have not taken the matter any further, though there appears to have been some interest in the mother’s household by Territory Families because, according to the father, Territory Families were visiting.

7. If there was any concrete information whatsoever about this, I would have expected in the four months since September 2019 the authorities to have taken some concrete step, or the father to have made an application to the court in circumstances other than responding to a recovery order after his unilateral relocation to Sydney.  However, that is not how it has panned out.

8. In my view, there was nothing in any material before me to suggest that these children are at unacceptable risk of harm should the present orders be enforced.  On the contrary, given that the father has unilaterally relocated two young children away from their mother without her agreement to a distant place where she cannot see them – one child under two – I consider that the real risk of harm to the children is likely to flow from the father’s actions which I consider to be immature and, frankly, inexcusable.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judge Young.

Associate: 

Date: 3 February 2020