Asaad & Noor (No 2)
[2022] FedCFamC1F 535
Federal Circuit and Family Court of Australia
(DIVISION 1)
Asaad & Noor (No 2) [2022] FedCFamC1F 535
File number(s): SYC 8469 of 2021 Judgment of: SCHONELL J Date of judgment: 26 July 2022 Catchwords: FAMILY LAW – ENFORCEMENT – Where orders had previously been made requiring the father to return the child to the mother who lives in Country C – Where the father has failed to comply with the orders – Where it is in the best interests of the child that the child be returned to the mother in Country C – Recovery order made. Legislation: Family Law Act 1975 (Cth) ss 60CC, 67U, 67V, 69ZL Cases cited: Asaad & Noor [2022] FedCFamC1F 135
Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346
Division: Division 1 First Instance Number of paragraphs: 20 Date of hearing: 25 July 2022 Place: Sydney Solicitor for the Applicant: Legal Aid NSW Sydney Central Family Law The Respondent: Did not participate ORDERS
SYC 8469 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS ASAAD
Applicant
AND: MR NOOR
Respondent
order made by:
SCHONELL J
DATE OF ORDER:
25 JULY 2022
THE COURT NOTED THAT:
A. The matter has been called three times and there is no response in relation to the call.
THE COURT ORDERS THAT:
1.Orders are made in accordance with Orders 1 to 4 of a document titled “Application – Enforcement” filed 14 July 2022 as set our hereunder:
1.Pursuant to s 67U of the Family Law Act 1975 (Cth) it is ordered that the child [X] born in 2013 (“the child”) be returned to the applicant mother [Ms Asaad], born in 1980 (“the recovery order”).
2.Pursuant to the recovery order and in accordance with s 67Q of the Family Law Act 1975 (Cth), the Marshal of the Federal Circuit and Family Court of Australia, the Deputy Marshal, any officer of the Australian Federal Police and any officer of a Police Force of a State or Territory of Australia is authorised and directed, with such assistance as they require and if necessary by force, to:
a.stop and search any vehicle, vessel, vessel or aircraft, and to enter and search any premises or place, for the purpose of finding the child;
b.recover the child; and
c.deliver the child to her maternal uncle [Mr G], born in 1973, on behalf of the applicant mother.
3.Pursuant to the recovery order and in accordance with s 67Q of the Family Law Act 1975 (Cth), [Mr G], born in 1973, is authorised and directed to deliver the child to the applicant mother and, for this purpose:
a.responsibility for the child’s day-to-day care is allocated to him until such time as the child is returned to the applicant mother.
4.For the purpose of Order 3 above, [Mr G], born in 1973, is permitted to hold the Australian passport of the child [X], born in 2013, and take her from Australia.”
2.The rules requiring personal service of the Application for Enforcement are dispensed with.
3.Service will be deemed effected by leaving a sealed copy of the Application for Enforcement and supporting documents at J Street, Suburb K NSW ….
4.Service of these Orders be similarly effected by leaving a sealed copy of the Orders at J Street, Suburb K NSW ….
5.Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an Order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.
AND THE COURT FURTHER NOTED THAT:
B.Mr G undertakes to the Court that when the child comes into his care, he will immediately arrange a Zoom or Microsoft Teams link with the mother.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Asaad & Noor has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
SCHONELL J:
By Application – Enforcement filed 14 July 2022, the applicant mother (“the mother”) seeks a Recovery Order in relation to the parties’ child, X born in 2013.
In support of the Application, the mother relies upon the following documents:
(1)Application – Enforcement filed 14 July 2022;
(2)Affidavit of mother filed 14 July 2022;
(3)Affidavit of Ms H filed 22 July 2022; and
(4)Affidavit of Mr B filed 25 July 2022.
On the hearing, the matter was called three times outside the Court and I note that there was no appearance by the respondent father (“the father”). Following brief submissions by the solicitor for the mother, I indicated that I intended to make the orders sought including orders for substituted service, and that I would deliver my reasons later. These are my reasons arising out of the making of the orders.
On 11 March 2022, I made orders providing for the mother to have sole parental responsibility for the child and for the father to deliver the child to the mother or her nominee at a place of her choosing, as well as making various other orders permitting the mother to obtain a passport for the child so that the child can be returned to Country C. The orders that I made in this matter need to be read in light of my judgment of Asaad & Noor [2022] FedCFamC1F 135 delivered on 11 March 2022.
Subsequent to the making of orders on 11 March 2022, the mother made an application for a passport, with such passport ultimately issuing to the mother on 4 July 2022.
The mother has attempted to obtain a visa to travel to Australia but has so far been unsuccessful. Consequently, the mother has arranged for the child’s maternal uncle, Mr G, who lives in the United Kingdom, to travel to Australia for the purposes of collection of the child. Mr G was present with the mother’s solicitor at the time of the hearing. The mother’s solicitor informs me that he currently holds a passport for the child and intends to remain in Australia as long as possible for the purposes of giving effect to the orders. I am informed that he knows the child well and speaks English.
On 1 April 2022, the mother caused to be delivered to the father at his home address a copy of the orders made on 11 March 2022. On 9 July 2022, a letter was delivered personally to the father at his home requesting the father arrange delivery of the child to the mother. That letter also enclosed a copy of the proposed Enforcement Application. On 14 July 2022, service of the Enforcement Application was attempted at the home of the father. On 21 July 2022, a copy of the Enforcement Application was left at the father’s home.
The mother’s solicitor also gives evidence that she sent two text messages to the father on 21 July 2022 at two numbers, being numbers that the mother has previously communicated with the father.
I am comfortably satisfied that all reasonable attempts have been made to give the father notice of the orders that are sought to be made, and I am satisfied that he has notice of the orders that will be made if he does not appear.
Recovery order
Consistent with the provisions of s 69ZL of the Family Law Act 1975 (Cth) (“the Act”), I set out in short form my reasons.
This is an interim hearing and there has been no cross-examination. By virtue of that fact, I am unable to make findings in relation to the disputed facts of which there are many.
The Court has power to make a recovery order pursuant to s 67U of the Act. Section 67V directs that in deciding whether to make a recovery order in relation to a child, the Court is required to regard the best interests of the child as the paramount consideration. Section 60CC of the Act provides how a Court determines what is in a child’s best interests. Section 60CC outlines the primary and additional considerations that the Court is to take into account in determining what is in the best interests of a child. Not all of them are relevant in the determination of this Application.
The Full Court in Goode & Goode (2006) FLC 93-286 set out the procedural steps in an interim application, noting that in interim proceedings there may be little uncontested evidence. In that, respect, I rely upon the matters set out in my judgment dated 11 March 2022.
I have previously determined that it was in the best interests of the child that she be returned to Country C. Apart from the effluxion of time (some four months), no new issue has arisen that would suggest that there should be a reconsideration of that determination.
There is no evidence before me that suggests that the factual assertions addressed by me in my judgment have changed other than that the father has not returned the child to the mother.
The father’s refusal to comply with orders and to fostering a relationship between the mother and the child leads to the conclusion at this stage, on the basis of the current evidence, that the father will not promote any relationship between the child and the mother.
There is no evidence before me that would invite a reconsideration of the determination that the child should be returned to Country C.
The orders that the mother seeks are to facilitate that determination. I am satisfied that the child knows her maternal uncle and that he speaks English. To the extent that in my earlier judgment there was the suggestion that the child no longer speaks Country C Language, then the uncle’s ability to communicate with the child in English will overcome that difficulty. I further note that the uncle has undertaken to the Court to arrange a video link between the child and her mother as soon as she comes into his care. This will, to the extent possible, reduce the distress to the child created by the father’s unilateral acts.
The father can obviate the necessity for such orders by complying with the existing orders for the return of the child to the mother. It is a matter that is very much within his domain and control as to whether or not he wishes to avoid the outcome as proposed by the mother’s orders. Should he not do so, then orders will be effected that give effect to the return of the child to Country C.
I propose to make the orders as sought by the mother as being in the best interests of the child. I have also made orders for substituted service upon the father.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell. Associate:
Dated: 26 July 2022
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