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.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Asaad & Noor (No 2)

Details

AGLC: Asaad & Noor (No 2) [2022] FedCFamC1F 535
Case: [2022] FedCFamC1F 535
Decision Date

CaseChat Overview and Summary

In the matter of Asaad & Noor (No 2), the mother, Ms Asaad, applied for a recovery order in relation to her child, [X], born in 2013. The matter was heard by Justice Schonell of the Federal Circuit and Family Court of Australia (Division 1). The father, Mr Noor, did not participate in the proceedings. The court was required to determine whether to make a recovery order under section 67U of the Family Law Act 1975 (Cth) (the Act), which would compel the father to return the child to the mother in Country C, as previously ordered.

Justice Schonell found that all reasonable attempts had been made to serve the father with the application and orders, including substituted service, and that the father was aware of the orders sought. The court considered the best interests of the child as the paramount consideration in making the recovery order, as required by section 67V of the Act. Justice Schonell noted that there was no new evidence to suggest a reconsideration of the previous determination that it was in the best interests of the child to be returned to Country C. The court was satisfied that the child's maternal uncle, Mr G, who lives in the United Kingdom, would be able to care for the child and facilitate communication between the child and her mother.

Justice Schonell made the orders as sought by the mother, including a recovery order for the return of the child to the mother in Country C, and authorised 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 to stop and search any vehicle, vessel, aircraft or premises and to recover the child and deliver her to Mr G on behalf of the mother. The court also allocated responsibility for the child's day-to-day care to Mr G until the child is returned to the mother and permitted him to hold the child's Australian passport and take her from Australia.

The court made orders for substituted service on the father and noted that Mr G had undertaken to arrange a video link between the child and her mother as soon as she comes into his care. Justice Schonell certified that the reasons for judgment were a true copy.

Orders