GREEN & AUDINO

[2015] FamCA 68

FAMILY COURT OF AUSTRALIA

GREEN & AUDINO [2015] FamCA 68

FAMILY LAW – CHILDREN – Recovery Order – orders made for the child to live with the father in Queensland and spend time with the mother in South Australia during school holidays – mother retained child at conclusion of holidays – father seeks orders for the delivery up of the child – best interests of the child – orders made for the return of the child to the father - operation of recovery order suspended pending mother’s compliance with orders.

Family Law Act 1975 (Cth) s 60CC, 65DAA, 67U

Goode & Goode (2006) FLC 93-286

APPLICANT: Ms Green

RESPONDENT: Mr Audino

FILE NUMBER: ADC 60 of 2015

DATE DELIVERED: 11 February 2015

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 11 February 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: n/a

SOLICITOR FOR THE APPLICANT: In Person

COUNSEL FOR THE RESPONDENT: Mr Zufic

SOLICITOR FOR THE RESPONDENT: Client Care Solicitors

Orders

1. The mother return the child B (“the child”) born on … 2003 to the care of the father forthwith and in any event take all steps to ensure that the child is returned to the father at the C Town airport no later than 5.00 pm on Friday 13 February 2015.

2. The mother and father to cooperate to make arrangements to ensure the return of the child from the care of the mother to the care of the father and that such communication between the mother and the father take place by SMS with the father informing the mother of the purchase of the necessary air tickets for the child no later than 5.00 pm on Thursday 12 February 2015.

3. The airfare for the child’s return to the father is to be paid in the first instance by the father with further consideration of the mother reimbursing the father of the air tickets cost be adjourned to the Federal Circuit Court in Brisbane on a date to be advised.

4. 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 B born on … 2003;

   (b)to return the said children to the father Mr Audino forthwith at such place as the respondent father 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.

   PROVIDED THAT the operation of this Recovery Order is suspended until 5.00 pm on Friday 13 February 2015 UPON NOTING if the child is not returned to the father by 5.00 pm on Friday 13 February 2015 the father (or his solicitor) are to notify the Australian Federal Police of the failure to return the child to the father and that the Recovery Order do issue.

5. The proceedings are transferred to the Federal Circuit Court at Brisbane to allocate a directions hearing by the Registrar or the Judicial Officer of the Court as they may determine.

6. The Application in a Case filed by the mother on 12 January 2015 is dismissed and removed from the pending cases list.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Green & Audino 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 ADELAIDE

FILE NUMBER: ADC 60 of 2015

Ms Green

Applicant

And

Mr Audino

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. I have taken into account the Initiating Application of the mother filed in this Court on 10 January 2015 and the affidavit in support of that application, together with the response of the father and the supporting affidavits filed by the father.  It is significant to take into account the history of the matter, including the final orders that were made in the Federal Magistrates Court (as it then was) at Brisbane sitting at C Town on 2 November 2007 and the history of the litigation between the parties which is set out in the affidavits now before this Court.

2. It is significant that the child, who was born in 2003, is nearly 12 years old and that, for a considerable period of time, both before and since the orders of November 2007, the child has been in the care of the father and spending time with the mother during school holiday arrangements, as organised pursuant to the orders of the Court and, according to the father’s affidavit, at other times as well.  The mother now alleges in her affidavit that the child does not wish to live with the father, wishes to remain living with her and has some emotional or psychological issues. 

3. The father has presented to the Court information from a karate coach and the child’s school which calls into question the mother’s allegations about the progress of the child in the care of the father.  This is an interim hearing and the Court is not in a position to determine which of the facts alleged by the parties where there is a conflict should be the facts relied upon.  The Court is required, nonetheless, pursuant to the provisions of Goode & Goode (2006) FLC 93-286 and the Family Law Act 1975 (Cth) (“the Act”), to make a determination at this interim level as to what is in the best interests of the child.

4. It is also necessary to take into account the provisions of section 65DAA where there is an order in place which provides for the parties to have equal shared parental responsibility.  I am satisfied, however, that in this case, on an interim issue such as this and where there is a recovery order sought for the return of the child, it is not in the child’s best interests for there to be a shared time or substantial or significant time, nor is it reasonably practicable in these circumstances. 

5. I therefore consider the factors in section 60CC in relation to determination of what is in the best interests of the child. 

6. On an interim basis the significant factors to be taken into account are the length of time the child has been in the care of the father and the stability which that appears to have provided, together with the support of the school of the child, indicating the past development of the child has been positive in the father’s care.  It is also significant that since the child has been retained by the mother (which was a retention that was not in accordance with the existing orders) the child has not been enrolled in school.  The arrangements for the child to attend high school in Queensland have not been able to be put in place.  This is likely to have been detrimental for the child.

7. I do take into account the mother’s submissions in her affidavit and in oral submissions that I need to consider the child’s relationship with his step-brothers.  The factor, and the relationship with the child and the mother, are significant factors but are not overriding factors taking into account all of the other factors in relation to section 60CC and the need to prevent further disruption for the child whilst the matter is determined.

8. In summary, therefore, I propose to order the return of the child to the father and for those steps to be taken immediately and on the understanding that if the steps are not taken, the recovery orders will issue.

9. I make it clear to the mother that I would consider the mother’s actions in failing to comply with the orders for the delivery up of the child to be a significant factor because then that would put the child at serious risk of having to be confronted by policemen.  Even at the age of nearly 12, he may consider that, notwithstanding it is an order of this Court, and not in the criminal jurisdiction, having to be taken into the care of the police pursuant to a recovery order is not likely to be in the young child’s best interest because of the risk of causing him emotional and psychological harm.

10. The responsibility of the parents is to ensure that these orders are obeyed.  The responsibility of the mother will be to make sure that the orders are complied with without the risk of a recovery order having to be put into effect.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 11 February 2015.

Associate: 

Date:  13 February 2015