EASLING & GRAYSON

[2020] FCCA 2493

FEDERAL CIRCUIT COURT OF AUSTRALIA

EASLING & GRAYSON [2020] FCCA 2493

Catchwords:
FAMILY LAW – Enforcement of Orders – recovery order – where the father makes an application for an urgent recovery order – where the mother has withheld the child contrary to final orders that the child live with the father – where the child who is the subject of the recovery order has lived continuously with the Father in Victoria since 2013 – where the mother has failed to return the child to the State of Victoria and does not intend to return the child – where the mother has unilaterally enrolled the child in a school in Western Australia – where the mother has made an application to vary the final orders – recovery order issued in the best interests of the child – recovery order stayed for 72 hours – listed for further hearing to determine mother’s application to vary final orders.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CC, 67U, 67V, 67Q, 69ZT

Applicant: MR EASLING

Respondent: MS GRAYSON

File Number: MLC 8970 of 2020

Judgment of: Judge C.E. Kirton QC

Hearing date: 31 August 2020

Date of Last Submission: 31 August 2020

Delivered at: Melbourne

Delivered on: 31 August 2020

REPRESENTATION

Counsel for the Applicant: Ms Swann

Solicitors for the Applicant: Aston Legal Group

Counsel for the Respondent: Mr Mort

Solicitors for the Respondent: Shilton Family Law

ORDERS

1. Pursuant to ss.67Q and 67U of the Family Law Act 1975 (Cth) a Recovery Order do issue authorising and directing the Marshal, all officers of the Australian Federal Police and all officers of the Police Forces of all the 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 X born in 2009 (“the child”);

   (b)To deliver the child to the Applicant Father at B Street, Town C, in the State of Victoria, or such other place (reasonably accessible by the Applicant Father) as the person effecting such recovery nominates; 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 child may be found.

2. Order 1 of these Orders, being the Recovery Order, be stayed until 4:00 pm on 3 September 2020.

3. The matter be adjourned to the Federal Circuit Court of Australia on 4 November 2020 at 9.30 am for Mention by videolink.

4. The parties’ costs of and incidental to today be reserved.

AND THE COURT NOTES THAT:

A.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Annexure and these particulars are included in these orders.

IT IS NOTED that publication of this judgment under the pseudonym Easling & Grayson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 8970 of 2020

MR EASLING

Applicant

And

MS GRAYSON

Respondent

REASONS FOR JUDGMENT

Ex Tempore; Revised from Transcript

Introduction

1. This is an application made by the Applicant Father for a recovery order made pursuant to s.67Q of the Family Law Act 1975 (Cth) (Act) in relation to the child X, born in 2009, who is now 11 years old.  The Applicant Father relies on an Initiating Application, filed on 18 August 2020, an Affidavit the Father deposed on to on 17 August 2020 and filed on 18 August 2020 (Father’s Affidavit), a Notice of Risk filed on 18 August 2020, and a reply Affidavit of the Father, filed on 28 August 2020.

2. On 20 August 2020, a Registrar of this Court abridged the time for the hearing of the Initiating Application to 31 August 2020 at 2.15 pm due to the urgent circumstances of this case.  The Registrar also ordered the Mother to file a Response, affidavit in support and Notice of Risk by 27 August 2020. 

3. The Respondent Mother relies on the following documents, being a Response filed on 27 August 2020, an Affidavit of the Mother filed on 27 August 2020 (Mother’s Affidavit), a Notice of Risk filed on 27 August 2020 (Mother’s Notice of Risk) and an Affidavit of Ms G filed on 30 August 2020. 

History of Proceedings

1. The events leading to the Father’s application for a recovery order may be summarised as follows.  In the Father’s Affidavit, the Father deposed that the parties commenced a relationship in 2008, and X was born in 2009.  That relationship could be described as tumultuous and characterised by drugs and violence, according to both parties.  At the time X was born, the Mother was living in Victoria and the Father was working in Tasmania, and returning home to Victoria on weekends, according to the Father.  In 2010, the Father deposed that the Mother left X when she was nine months’ old with the paternal grandparents, being Mr & Mrs D in Victoria, and did not return.  The Father then resigned from his job in Tasmania and became a full-time parent, living with the paternal grandparents for approximately two years in Victoria.

2. There then proceeded to be some litigation between the parties, but what ultimately occurred was on 21 June 2013, by Final Orders of this Court, it was Ordered that X live with the Father, and spend time with the Mother as agreed between the parties.  When these Orders were made, the Mother did not appear at the Final Hearing.  At the time the Final Orders were made, X was four years old.  Since the Final Orders were made, X has lived continuously with the Father.  The Father re-partnered in 2013 with Ms E.  Ms E has a 13-year-old daughter from a previous relationship and the Father and Ms E have a son, F, X’s stepbrother, who is three years old. 

3. In paragraphs 17 to 21 of the Father’s Affidavit, the Father deposed to the contact that X has had with the Mother since the making of the Final Orders until December 2019.  The Mother now lives in Western Australia.  During this time, X has never spent more than two weeks with the Mother in Western Australia. 

4. In paragraphs 22 to 47 of the Father’s Affidavit, the Father has deposed to the events where X flew to Western Australia on 7 July 2020, and the Mother has refused to return X to her Father and has enrolled her in school in Western Australia.  The Mother did not make any application to vary the Final Orders.

5. X has lived with her Father since the making of the Final Orders.  She attends school in Victoria.  Now that the Father has filed the Initiating Application, the Mother has filed a Response to vary the Final Orders.  The Mother’s Affidavit commences in paragraph two, with:  “I do not know many details with Mr Easling’s circumstances at this time”. The Mother’s Affidavit is replete with historical allegations, hearsay, speculation, unspecified and uncorroborated allegations and irrelevant allegations to this proceeding. The Court is cognisant, of course, of the provisions of s.69ZT of the Act, where the rules of evidence do not apply to child-related proceedings. However, most of the Mother’s Affidavit is completely irrelevant to this current proceeding in relation to the recovery order relating to X.

6. The Court notes that the Mother has been content to let X live with the Father in Victoria since 2013 and has had limited contact with her since then. The Court also notes that none of the allegations made in the Mother’s Notice of Risk post-date early 2012, over eight years ago. The Court takes into account s.60CC(2) of the Act. Further s.60CC(2A) requires the Court, in applying the considerations in s.60CC(2) of the Act, to give greater weight to the considerations in s.60CC(2)(b). The Mother has unilaterally removed X from her school, she has removed X from her family and friends, with whom she has been living for the past seven years.

7. It is not possible for the Court to make findings on the Mother’s allegations on an interim basis. The Court finds that the Mother has not acted in X’s best interests by removing X from her family in Victoria without seeking orders of the Court and a Family Report to ascertain what is in X’s best interests. 

8. The Court takes into account the Mother’s submissions made today which, in the Court’s view, are entirely not in X’s best interests. The Mother has opposed returning X back to her family in Victoria. The Court sees the Mother’s actions, as described by Counsel for the Father, “opportunistic over holding” and accordingly, will make a recovery order for the return of X.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge C. E. Kirton QC

Associate: 

Date: 9 September 2020