Beary & Yeshin
[2021] FedCFamC1F 92
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Beary & Yeshin [2021] FedCFamC1F 92
File number(s): MLC 14649 of 2019 Judgment of: MCEVOY J Date of judgment: 21 September 2021 Catchwords: FAMILY LAW – CHILDREN – ENFORCEMENT OF ORDERS – Recovery Order – where the parties consented to parenting orders establishing a shared care arrangement in February 2021 – where the mother unilaterally relocated to Perth from Melbourne shortly after the making of these orders – where the father seeks a recovery order returning the child to Melbourne – where the mother alleges she relocated in order to protect the child from abuse from the father – where the mother was not able to provide any evidence of this alleged abuse to the Court and none was apparent – where a recovery order made – where the mother subsequently indicated she would return voluntarily with the child – where recovery order stayed for a short period to allow the mother the opportunity to return voluntarily with the child. Legislation: Family Law Act 1975 (Cth) Division: Division 1 First Instance Number of paragraphs: 9 Date of hearing: 21 September 2021 Place: Melbourne Solicitor for the Applicant: Fitzroy Legal Service as amicus curiae assisting the Applicant Solicitor for the Respondent: Self-represented Counsel for the Independent Children’s Lawyer: Mr Gardiner Solicitor for the Independent Children’s Lawyer MMH Lawyers ORDERS
MLC 14649 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR BEARY
Applicant
AND: MS YESHIN
Respondent
ORDER MADE BY:
MCEVOY J
DATE OF ORDER:
21 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.Pursuant to s.67U of the Family Law Act 1975 a Recovery Order issue authorising and directing the Marshal, Deputy Marshal, all officers of the Australian Federal Police and all officers of the Police Forces of all of the States and Territories of the Commonwealth of Australia to find and recover the said child X BEARY sometimes known as X YESHIN born in 2016 and deliver the said child to the father forthwith, he being the person entitled to have the said child live with him at certain times pursuant to orders made on 12 February 2021 in the Family Court of Australia.
2.If the mother takes or attempts to retake possession of the child after execution of this recovery order and inconsistently with the orders of 12 February 2021, she may be arrested without warrant.
3.Order 4 of the orders of 1 July 2020 be amended such that the child’s name remain on the Airport Watch List until 30 June 2023.
4.All extant interim orders be dismissed.
AND THE COURT NOTES THAT:
A.During the hearing the mother indicated that she intended to return voluntarily to Melbourne and to accompany the child upon his return. This intention should, as far as reasonably practicable, be taken into account in the implementation of order 1 herein.
B.Pursuant to s.65DA(2) and s.62B of the Family Law Act 1975, 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.
ORDER MADE BY:
MCEVOY J
DATE OF ORDER:
27 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.Order 1 of the orders dated 21 September 2021 (the recovery order) be suspended until 3 October 2021.
AND THE COURT NOTES THAT:
A.The mother has informed the Court that she will return to Melbourne with the child on 2 October 2021.
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 Beary & Yeshin has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX-TEMPORE REASONS FOR JUDGMENT
MCEVOY J:
By an application in a case filed 26 August 2021, the applicant father seeks the recovery of the child from Western Australia in order that the parenting orders made by consent on 12 February 2021 (“the orders”) can resume. He also seeks an extension of the existing Airport Watchlist order until the hearing and determination of this matter, or until further order. Shortly after the making of the orders the respondent mother unilaterally left Melbourne with the child and travelled to Perth, where she has since remained in effective breach of the orders. For the purposes of his application, the father relies on his case outline dated 20 September 2021, affidavits sworn 26 August 2021 and 16 September 2021 together with the family report dated 1 July 2021.
The father says that this is not the first time that the mother has unilaterally removed the child from him and that there is no connection between the mother and Western Australia. He says that the only reason that she has gone to Western Australia is to prevent the operation of the orders.
By an amended response filed 9 September 2021 the respondent mother seeks orders altering the existing parenting orders and for the transfer of this matter to the Family Court of Western Australia. She relies on her summary of issues dated 16 September 2021 and accompanying medical reports from a specialist paediatrician and a ‘case conference action plan’ from B School, an affidavit that she swore on 8 September 2021 which she says alleges, amongst other things, that she went to Western Australia because she needed to protect the child from neglect at the hands of his father, and a notice of risk filed yesterday at 10.27 pm alleging abuse of the child by the father. It is not apparent that there has in fact been any neglect or abuse of the child by the father and although the mother referred to various medical reports to this effect, she was not able to produce them to the Court.
The report of the child’s paediatrician dated 21 May 2021, which was produced, makes no mention of any abuse or suspected abuse of the child at the hands of the father. The Court is thus left with no more than the mother’s generalised and unparticularised assertions that the father has been neglectful and abusive of the child. These assertions sit uncomfortably with the mother’s preparedness to agree to the orders, which provided for an interim parenting regime and unsupervised time with the father.
The Independent Children Lawyers’ (“the ICL”) position is that a recovery order should be made immediately. He submits, correctly, that the child has the right to have a relationship with his father and notes that the family report (in paragraph 46) says that the mother relocated to Western Australia because her accommodation in Melbourne was not suitable and that she could not work in Melbourne or afford to live here. He notes also that the mother told the family report writer (recorded in paragraph 48), that the child did not in fact have any special needs despite evidence from the paediatrician that the case is otherwise.
Ultimately the family report writer recommended that if a recovery order was to be made then the child should continue to reside in the primary care of the mother.. The family report writer recommended that the child should spend time with the father every second weekend and for one night on the alternate week with these arrangements building as the father and the child re-establish their relationship, that the child was to be supported to spend time with the father via FaceTime at least twice per week, that handovers between the parties occur at a public place where there is CCTV, that the child be re-enrolled in kindergarten at his previous kindergarten as soon as possible and also that the mother would likely benefit from linking in with a community agency such as C Services, which would provide general case management services to assist her in re-establishing the child and herself in Melbourne and potentially assist the parties in improving their co-parenting relationship.
The ICL notes that the mother has been misleading and deceptive in her dealings with the father and the Court.
I am satisfied, in all the circumstances, that a recovery order should be issued forthwith and that the Airport Watchlist order should be extended until the hearing and determination of the proceedings or further order. The mother should never have taken the child to Perth. She defied Court orders to do so. And she has not returned in spite of the husband’s various applications seeking to have her return. In all the circumstances, I will extend the Watchlist order until 30 June 2023. I am also satisfied that all extant interim applications should be dismissed.
I record also that after the pronouncement of orders and the statement of these reasons the mother indicated that she would return from Perth to Melbourne with the child at the earliest opportunity. On 27 September 2021 she confirmed in writing to my chambers that she had booked airline tickets returning to Melbourne on 2 October 2021. In these circumstances I stayed the recovery order until 3 October 2021. If the mother does not return as she has indicated that she will and the child is not returned to Melbourne on 2 October 2021, he will be returned independently of the mother by operation of the recovery order.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McEvoy. Associate:
Dated: 30 September 2021
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