DAVEY & YARDLEY

[2014] FamCA 30

FAMILY COURT OF AUSTRALIA

DAVEY & YARDLEY [2014] FamCA 30

FAMILY LAW – CHILDREN – Best interests of the child – Recovery Order – location of child and father unknown – mother sought orders to have the child returned to her – best interests of child to be returned to primary caregiver – orders granted.
FAMILY LAW – JURISDICTION – Forum conveniens – Orders in accordance with Court of another jurisdiction.

Family Law Act 1975 (Cth)

APPLICANT: Ms Davey

RESPONDENT:	Mr Yardley
FILE NUMBER:	ADC	112	of		2014

DATE DELIVERED: Friday, 17 January 2014

PLACE DELIVERED: Darwin

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: Friday 17 January 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr White

SOLICITOR FOR THE APPLICANT: White Berman

COUNSEL FOR THE RESPONDENT: n/a

SOLICITOR FOR THE RESPONDENT: n/a

Orders

1. The father do forthwith deliver up the child D (“the child”) born on … December 2006 to the mother.

2. The mother do have sole parental responsibility for the child.

3. The child live with the mother.

4. The father be restrained and an injunction is granted restraining him from:

   4.1removing the child from the care of the mother;

   4.2removing the child from the State of South Australia or the Commonwealth of Australia without the written consent of the mother first having been obtained or without an order of this Honourable Court so to do.

5. The father do forthwith deliver up to the mother the passports of the child.

6. The mother be at liberty to apply for a replacement passport for the child without the requirement for the father to sign any application therefor.

7. It is requested that the Australian Federal Police give effect to the Order by placing the name of the male child D born on … December 2006 on the Watch List in force at all points of arrival and departure in the Commonwealth of Australia maintained by the Australian Federal Police SAVE AND EXCEPT the child may leave the Commonwealth of Australia in the company of the mother MS DAVEY born on … March 1976 and that the Australian Federal Police be directed to place the said child on the Watch List for a period of two [2] years.

8. Upon expiration of the period referred to in Order 7 hereof and subject to any further Order of a Court of competent jurisdiction, the Australian Federal Police will cause the removal of the child’s name from the Watch List UPON NOTING if after the expiration of the period set out in Order 7 hereof any parent seeks that the child’s name remain on the Watch List for a period beyond the period specified that party must file and serve an application and an affidavit setting out the evidence which supports that application in the Family Court of Australia or the Federal Circuit Court of Australia.

9. Pursuant to Section 67U of the Family Law Act 1975 as amended THAT a Recovery Order do issue authorising and directing the Marshal, all officers of the Australian Federal Police and of the Police Forces of all States and Territories of the Commonwealth of Australia, with such assistances as may be required, and if necessary by force:

   (a)to find and recover the male child D born on the … December 2006;

   (b)to return the said children to the wife MS DAVEY forthwith at such place as the applicant wife and the person effecting such recovery shall agree to be appropriate; and

   (c)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 said child may be found.

10. The wife to notify the Registrar of the Family Court of Australia at Adelaide within seven [7] days of the child being returned to her care.

11. The proceedings be listed for further hearing before a Judge of the Family Court of Australia within one [1] month of the wife notifying the Court of the return of the child.

12. The father to file a Notice of Address for Service within fourteen [14] days of child being returned to the care of the wife or service of this Order upon him whichever first occurs.

13. The wife has leave to publish a copy of the orders and of these proceedings to any Australian Government Department and Overseas Authority necessary to assist in the location and recovery of the child.

14. The question of the wife’s costs is reserved.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Davey & Yardley 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 DARWIN

FILE NUMBER: ADC 112 of 2014

Ms Davey

Applicant

And

Mr Yardley

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This is an unusual Initiating Application and interim orders sought in relation to the child of the parties, D, who was born in December 2006.  I have taken into account the material filed in relation to this matter and, in particular, the affidavit of the wife filed on 15 January 2014 and the annexures to that document.  The jurisdiction of the Court is based upon the clear fact that the mother is currently present in Adelaide, Australia.  Both the mother, father and the child are Australian citizens.  It is not clear, however, at this stage where the child is and that serious concern is one of the main factors that has brought about the situation where I am hearing this matter ex parte. 

2. There is now an Affidavit of Service which indicates that documents have been forwarded to the father, pursuant to the electronic means; however, that is not the usual form of service, particularly of a service in initiating proceedings.  However, in view of the actions which are referred to in the mother’s affidavit, I am proposing to continue to hear the matter, notwithstanding the issues concerning service. 

3. I am doing that on the basis that the Court has jurisdiction.  In relation to the forum conveniens issue, it is difficult to determine which other Court may have jurisdiction because of the actions taken by the father.  The affidavit of the mother sets out the clear indications that following upon the separation of the parties there was litigation in the Courts of the jurisdiction of which they were then residing.  I have the orders of the Court and relevant documents relating to the orders of the Court, which provided for the mother to have sole custody of the child D and that the father was to see the child from Thursday, 12 noon until Saturday, 12 noon, weekly. 

4. Those agreements were reached and approved by the Court, as is set out in the documents of the Court annexed to the wife’s affidavit (being the order dated 13 June 2012).  The parties and the child are Australian citizens, but it is clear from the affidavit material that recently they were living in Country B, and the arrangements set out in the orders were in place. 

5. The mother’s affidavit sets out the serious facts alleged that the father on 5 December 2013 did not return the child to the mother and, following further inquiries from the Country B Police and authorities, it appears that he then left Country B without the mother’s permission.  The last record of the child and the father shows them entering into Country C on 5 December 2013. 

6. I am therefore satisfied that this Court has jurisdiction and it is appropriate to exercise this Court’s jurisdiction on an ex parte basis in order to assist the mother to obtain all necessary assistance from appropriate authorities to ascertain the current whereabouts of the child and to have the child returned to her care.  This would be in accordance with the orders of the Honourable Court of Country B.  It will allow this Court to carry out its duties under the various Hague Conventions if the child is in an appropriate Convention country.  It will assist this Court in coming to an overall final decision in due course, having heard all of the necessary evidence to determine what is in the best interests of the child. 

7. The Court proposes to make an order which would provide for the child to be returned to the mother’s care on the basis that if the father has material which he considers appropriate to alter the interim orders of the Court, he will be in a position to file his material, serve it on the wife’s solicitors and put his submissions to this Court so that in due course all relevant matters can be determined. 

8. However, at this stage, taking into account in particular the affidavit of the mother and the order of the Country B Court, I consider it to be in the best interests of the child to ensure that the child is returned to the primary caregiver.  The factors otherwise necessary to be considered in the provisions of the Family Law Act 1975 (Cth) all indicate that it is in the best interests of the child that that interim order be made.

9. The question of costs is reserved.  I do not think the orders have restricted the mother taking the child out of the country, but my concern would be that I do not want the jurisdiction of this Court to be abused in any way.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 17 January 2014.

Associate: 

Date:  30 January 2014