FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Bellanger & Wemble [2023] FedCFamC2F 1246
File number: MLC 5456 of 2023 Judgment of: JUDGE O'SHANNESSY Date of judgment: 18 September 2023 Catchwords: FAMILY LAW – application for a recovery order – parenting orders finalised by consent in 2021 – allegations that the father has abducted the children overseas – children are in a country that is not a signature to the Hague Convention – no jurisdiction for international recovery – mother submits that the overseas authorities may assist her to enforce a recovery order made by this court – application allowed. Legislation: Acts Interpretation Act 1901 (Cth) s 15AB
Family Law Act 1975 (Cth) ss 60CA, 60CC, 67Q, 67R, 67S, 67T, 67U, 67V, 69E, 69ZL, 111CA, 111CB, 111CC and 111CD
Revised Explanatory Memorandum to the Family Law Amendment (Child Protection Convention) Bill 2002 (Cth)
Hague Convention on the Civil Aspects of International Child Abduction (25 October 1980)
Cases cited: Alfarsi & Elhage [2016] FamCA 428
Bunyon & Lewis (No 3) [2013] FamCA 888
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355
Trinh & Trinh [2023] FedCFamC2F 943
Yaling & Tsen [2022] FedCFamC1F 347
Division: Division 2 Family Law Number of paragraphs: 92 Date of hearing: 18 September 2023 Place: Melbourne Solicitor for the Applicant: Mr Monoah of Sunshine Lawyers The First Respondent: No appearance The Second Respondent: No appearance ORDERS
MLC 5456 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS BELLANGER
Applicant
AND: MR WEMBLE
First Respondent
MS PAIGE
Second Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
18 SEPTEMBER 2023
THE COURT ORDERS THAT:
Amended pursuant to rule 10.13(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) on 25 September 2023
1.Pursuant to Section 67Q of the Family Law Act 1975 a Recovery Order issue authorising and 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 children X born in 2011 and Y born in 2013 (“the children”) and to deliver the children to the applicant Mother at such place as the Mother 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 place in which there is at any time reasonable cause to believe that the child/ren may be found.
2.IT IS RESPECTFULLY REQUESTED that the;
(a)City B Court in C State in Country D; and
(b)the District Court in C State in Country D; and
(c)the County Court in C State in Country D; and
(d)the Supreme Court in C State in Country D; and
(e)the Commissioner of Police in C State in Country D; and
(f)the Officers of the Department of Foreign Affairs in…
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CaseChat Overview and Summary
The central legal issue was whether the court had the authority to issue a recovery order under Section 67Q of the Family Law Act 1975 given that the children were in a non-Hague Convention country. The court acknowledged the Hague Convention's role in international child recovery but recognised that its jurisdiction was limited in this instance. The mother argued that the overseas authorities might still assist in enforcing the court's recovery order. The court deliberated on the balance between asserting its authority and the practicalities of enforcing the order in a non-signatory country.
The court found that while it lacked direct jurisdiction to enforce the recovery order in the foreign country, it could still issue the order. The court emphasised the importance of the mother's proactive approach in seeking assistance from the relevant overseas authorities. The court granted the application, issuing a recovery order and requesting cooperation from the courts and law enforcement agencies in the country where the children were located. The court also allowed the mother to seek an urgent hearing if the children were recovered or if new circumstances arose that could aid in their recovery.
The final orders included a recovery order directing law enforcement agencies to locate and return the children to their mother. Additionally, the court requested assistance from various courts and authorities in the children's country of residence to enforce the recovery order. The mother was granted leave to approach the court for an urgent hearing under certain conditions, and she was required to serve the orders and reasons for judgment on the respondents. The court noted that the initial parenting orders were agreed upon by the father, and it reminded the parties of the restrictions on publishing details of family law proceedings.
Orders
Orders of the court
MLC 5456 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS BELLANGER
Applicant
AND:
MR WEMBLE
First Respondent
MS PAIGE
Second Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
18 SEPTEMBER 2023
THE COURT ORDERS THAT:
Amended pursuant to rule 10.13(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) on 25 September 2023
1. Pursuant to Section 67Q of the Family Law Act 1975 a Recovery Order issue authorising and 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 children X born in 2011 and Y born in 2013 (“the children”) and to deliver the children to the applicant Mother at such place as the Mother 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 place in which there is at any time reasonable cause to believe that the child/ren may be found.
2. IT IS RESPECTFULLY REQUESTED that the;
(a) City B Court in C State in Country D; and
(b) the District Court in C State in Country D; and
(c) the County Court in C State in Country D; and
(d) the Supreme Court in C State in Country D; and
(e) the Commissioner of Police in C State in Country D; and
(f) the Officers of the Department of Foreign Affairs in Country D.
(g) (a-f) above are referred to as (“The Country D Authorities”)
lend their assistance, if they or any of them can assist consistently with the law of Country D, with the enforcement of this recovery order (Order 1 herein), and the reunification of the Mother with the children pursuant to the orders made in this Court on 16 July 2022 August 2021.
3. The listing on 9 October 2023 at 2.00pm before a Judicial Registrar be and is vacated.
4. All extent applications are adjourned until 2 February 2024 at 10.00am before Judge O’Shannessy.
5. The Mother be granted leave to approach the Court to seek an urgent hearing on short notice in the event of either the recovery of children or further circumstances that may aid or assist the recovery.
6. The parties are at liberty to provide these orders and reasons for judgment to any of the Country D Authorities.
7. The Mother do all acts and things necessary to cause these orders and reasons for judgement (when available) to be served to the First and Second Respondent by email to the Fathers email address …@....
AND THE COURT NOTES THAT:
A. The Orders made in this Court on 16 July 2022 August 2021 were agreed and consented to by the children’s Father, Mr Wemble the First Respondent.
B. If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
C. Affected unrepresented parties may apply to the court and then to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.
D. Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
E. If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
F. Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances and as provided by these orders, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
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.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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