Averroes and Attar

[2016] FamCA 509

FAMILY COURT OF AUSTRALIA

AVERROES & ATTAR [2016] FamCA 509

FAMILY LAW – CHILDREN – Recovery Order – Orders made after hours - ex parte

Family Law Act 1975 (1975) (Cth)

APPLICANT: Ms Averroes

RESPONDENT: Mr Attar

FILE NUMBER: BRC AHS 5960
2206 of of 2016 2016

DATE DELIVERED: 22 June 2016

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 22 June 2016

REPRESENTATION

APPLICANT: In person

RESPONDENT: No appearance

Amended on 22 June 2016 pursuant to rule 17.02 of the Family Law Rules 2004

Orders

UPON APPLICATION MADE TO THE COURT THIS DAY IT IS ORDERED EXPARTE: «FCA_LD221»

1. 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:

   (a)to find and recover the child a B, a male born … 2009 and to deliver the child to the mother Ms Averroes at such place as that person and the person effecting such recovery agree to be appropriate;  and

   (b)to stop and search any vehicle, vessel or aircraft and to enter and search any premises or places in which there is at any time reasonable cause to believe that the child may be found.

2. This matter is listed before a Judge of the Family Court of Australia at:

   Brisbane Registry on 22/6/2016 at times to be advised by the Registry.

3. The applicant is to arrange service of a sealed copy of these orders upon the respondent as soon as practicable.

NOTATION:

This Order has been amended pursuant to Rule 17.02 of the Family Law Rules 2004 by amending Clause 1.a. to record the correct spelling of the child’s name and the gender of the child.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 5960 of 2016
FILE NUMBER: AHS 2206 of 2016

Ms Averroes

Applicant

And

Mr Attar

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. At about 3.23 am this morning - as a consequence of contact made by a Registrar of the Court - I made an order for the recovery of the child B, a male born in 2009.  That order directs the Australian Federal Police or members of the police forces of all States and Territories of the Commonwealth of Australia to return the child to his mother, Ms Averroes, at a place that may be determined between the recovering officer and the mother. 

2. The information relied upon (as conveyed to me by the Registrar this morning) which persuaded me that it was in the child’s best interests to make this Order may be summarised briefly as follows. 

3. The mother and father of the child have - on the information provided by the mother – been separated under the same roof for about two years. 

4. The mother informed the Registrar that she returned home after work around midnight last night to discover the child and father missing. 

5. A note had been left for her.  That note was written in Arabic.  To the best of her ability, she provided an outline of the note to the Registrar.  Accepting that this is the best translation able to be provided at this stage, its contents were as follows: 

   If you read this, it means that I am on a plane to [the Middle East].  I have to do this before you might do something.  You have the option to stay or come.  You have to pay into the account to pay all the bills. 

6. The last sentence was, as the mother understands it, a reference to the fact that the child’s father had removed all of the funds from an account. 

7. The Registrar also informed me that she had been informed by the mother that the child’s father had left a printout of an itinerary for a one-way flight to the Middle East on 30 June 2016. 

8. Information provided by the Australian Federal Police to the Registrar was to the effect that it was confirmed that the child had left Australia with his father en route to the Middle East.  It was anticipated that that flight would land in the Middle East at 11.00 am this morning, Australian time. 

9. The information provided to the Registrar was to the effect that the Australian Federal Police in the Middle East believed that it may be possible to recover the child and have him returned to the Commonwealth of Australia with the assistance of local authorities if a recovery order was made. 

10. It was clear to me on the information provided to the Registrar (as I have outlined) that, on a prima-facie basis, at least, the father’s unilateral actions in removing the child from the Commonwealth of Australia and from the shared care, in the sense of living under the same roof with both his parents until then, amounted to a significant disruption to the care arrangements that had previously existed.  Given the difficulties that are likely to attend any attempts by the child’s mother to obtain parenting orders in the Middle East and given, as I understand it, that the child had until then lived for at least the majority, if not all, of his life in Australia, I was persuaded that his best interests required the making of the recovery Order. 

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 22 June 2016.

Associate:     

Date:    22 June 2016