Gazdar & Gazdar
[2022] FedCFamC1F 468
•5 July 2022
Federal Circuit and Family Court of Australia
(DIVISION 1)
Gazdar & Gazdar [2022] FedCFamC1F 468
File number(s): PAC 4890 of 2019 Judgment of: BRASCH J Date of judgment: 5 July 2022 Catchwords: FAMILY LAW – ENFORCEMENT OF ORDERS – Recovery order – Where an order was made that the father was to present the children to Child Court Services to have the parenting orders and reasons for judgement explained to the children – Where the children, whilst in the care of the father, left the registry – Where the father said that he was unable to locate the children – Order made. Legislation: Family Law Act 1975 (Cth) ss 67U, 67V Division: Division 1 First Instance Number of paragraphs: 15 Date of hearing: 5 July 2022 Place: Parramatta Solicitor Advocate for the Applicant: Ms Grew Solicitor for the Applicant: Matthews Folbigg Pty Ltd Solicitor Advocate for the Respondent: Mr Hameed Solicitor for the Respondent: Michael Vassili Barristers & Solicitors Solicitor Advocate for the Intervener: Ms Ryan Solicitor for the Intervener: Legal Aid NSW ORDERS
PAC 4890 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS GAZDAR
Applicant
AND: MR GAZDAR
Respondent
INDEPENDENT CHILDREN'S LAWYER
Intervener
order made by:
BRASCH J
DATE OF ORDER:
5 JULY 2022
THE COURT ORDERS THAT:
1.Pursuant to Section 67U of the Family Law Act 1975 (‘the Act’), a Recovery Order is issued forthwith authorising and directing the Marshall of the Federal Circuit and Family Court of Australia, 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 to take possession of the said children of the relationship, X (boy) born in 2006 and Y (boy) in 2011 and to deliver the said children to Child Court Services located on Level 1 Garfield Barwick Commonwealth Law Courts, Building 1-3 George Street, Parramatta NSW 2124 forthwith this location being where the children were to be brought pursuant to the Orders of this Honourable Court made on 28 June 2022.
2.In the instance the children are found outside of hours that the Child Court Services are available, the children are to be brought to the care of the mother.
THE COURT NOTES THAT:
A.If the children are brought into the care of the mother, the Independent Children’s Lawyer is to notify chambers via …
B.The proceedings are adjourned to a date to be fixed.
C.Mr Gazdar is to immediately deliver the children to the child care section of the Federal Circuit and Family court of Australia Parramatta Registry.
D.The legal representative for the father is to arrange service of a sealed copy of these orders upon Mr Gazdar as soon as practicable.
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 Gazdar & Gazdar is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX-TEMPORE JUDGEMENT
BRASCH J:
On various dates in April and May of this year, I heard parenting and property proceedings. The parenting proceedings concerned: X who is 15 years of age (DOB: 2006); and Y who is 10 years of age (DOB: 2011).
On 28 June 2022, I issued an order in the following terms:
THE COURT ORDERS THAT:
(1)This matter is listed for delivery of judgement at 9.30am on 5 July 2022 at the Parramatta Registry.
(2)The father is to cause the children [X] born in 2006 and [Y] born in 2011 (“the children”) to attend Child Court Services located on Level 1, Garfield Barwick Commonwealth Law Courts, Building 1-3 George Street, Parramatta NSW 2124 no later than 9.15am on 5 July 2022.
(3)Each parent is requested to bring a support person with them and to attend upon the Garfield Barwick Commonwealth Law Courts, Building 1-3 George Street, Parramatta NSW 2124, for the delivery of judgment at 9.30am on 5 July 2022.
I note the father has not done so.
(4)Upon delivery of the judgment, Child Court Experts, preferably including [Mr B], are requested to explain the reasons for judgement and orders to the children.
AND IT IS NOTED:
A.That if the father does not bring the children to Child Court Services located on Level 1, Garfield Barwick Commonwealth Law Courts, Building 1-3 George Street, Parramatta NSW 2124 by 9.15am on 5 July 2022, the Court will consider the making of a recovery order.
Plainly the purpose of that was to have the orders explained to them
B.That it was the opinion of the Single Expert that the Court’s reasons and findings, whatever they may be, be explained to the children.
C. That each party through their legal representative shall forward to ... the name of their support person who will present at the Delivery within five day of the date of these Orders.
I am told, and it seems to be common ground that the father and the children did attend upon the court and Child Court Services at some point this morning, but they have since gone. Plainly, my order is being frustrated by what the father has done, for whatever reason, and critically the order that is being frustrated is that the Orders be explained to the children and my Reasons. I note that was the very clear and unchallenged evidence of the Single Expert in this matter.
The mother and the Independent Children’s Lawyer (“ICL”) and to his great credit, as an officer of the court, the father’s solicitor have asked me to make a Recovery Order for the children. I note that Mr Hameed is acting in the true sense of an officer of the court because that is a duty that comes before any duty to the client. I thank him.
On joint application of the mothers’ solicitor, the ICL and the fathers’ solicitor I will make a Recovery Order for the children.
Section 67U of the Family Law Act 1975 (Cth)(“the Act”) provides:
Court's power to make recovery order
In proceedings for a recovery order, the court may, subject to section 67V, make such recovery order as it thinks proper.
Section 67V of the Act provides:
Child's best interests paramount consideration in making a recovery order
In deciding whether to make a recovery order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Note: Sections 60CB to 60CG deal with how a court determines a child's best interests.
Plainly, I am required to make an order that I think is proper, and have regard to the best interests of the children as the paramount consideration. I gave each party the opportunity to make any submissions to me; neither party in the circumstances did so, and understandably it was the case that the father has simply not complied with the order.
In considering what, if any order is proper, and taking into account the children’s best interests as the paramount consideration, it is useful to repeat what the Single Expert, Mr C said [in cross-examination at trial] of having the orders explained to the children:
HER HONOUR: If I determined, for whatever reasons, that the children were to stay with the father, what, if anything, should be done about their thinking about the mother? What should they be told? Can they learn? - - Well, it depends on what your finding is. I think that there is some benefit to the children being told what you would find, regardless of the outcome. It may be that it’s simply not possible for them to live in that conflicted world. If you look at the social science research in these very challenging cases, that what happens to these young people as adults is certainly concerning. The impact on them – and when they come to realise and are old enough to integrate, then that can be a time of some repair. But for some children, they’re just not able, even as adults, to recover a relationship with either parent. But I think they – it’s really important that they know what you think and what your – what the outcome of this process was. They are likely to say if you find – if you make – if you draw a conclusion and if you make a finding different to theirs, they will say that you were biased. They will say that you did not understand, that you are in favour of women or men, that you – they will maintain their own internal beliefs and reject all the evidence that supports that. I still think it’s really important. It should be – probably an Independent Children’s Lawyer or someone within the court who has experienced, so as they at least know.
(emphasis added)
(Transcript 28 April 2022, p. 17 lines 1-21).
I accept that evidence of the eminently qualified expert. It was not challenged in any significant way, if at all at trial. It is important the children understand what I have found. They may not accept what I have to say. They may indeed think I am biased, but it is important that they have a kernel of knowledge which may sit in the back of their minds to challenge the universe they have created, as demonstrated by the evidence of the Single Expert. It may not be until they are much older that they come to appreciate what has happened to them, and why.
I do not know how they will take my findings, but I accept the evidence of the Single Expert that "it is really important" they are told, irrespective of what the outcome is. Indeed, I consider it to be in their best interests to be told for the reasons articulated.
Accordingly, I will make a Recovery Order that the children be recovered to Child Court Services if within the hours that Child Court Services are available, or to the mother if outside of those hours.
I would still hope that, and Mr Hameed if you have any way to contact or converse with your client, I would still hope that the father is able to cause the children to be delivered to court, so my Reasons, whatever they may be, can be explained to them. That would be preferable because otherwise the police are involved. I will make the Recovery Order nevertheless.
I was to deliver my Reasons and Orders in the substantive proceedings at 9.30am, but I will adjourn that to a time to be fixed.
I would be grateful if the ICL would contact my associate when or if the children attend on Child Court Services and indeed if my associate is informed by Child Court Services that the children have attended, she will endeavour to contact each of you so that I may deliver judgement in my substantive matter.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Brasch. Associate:
Dated: 5 July 2022
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