Hillsworth & Kantawong (No 3)

[2024] FedCFamC1F 640

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Hillsworth & Kantawong (No 3) [2024] FedCFamC1F 640   

File number:	SYC 1826 of 2019
Judgment of:	CHRISTIE J
Date of judgment:	20 September 2024
Catchwords:	FAMILY LAW – ENFORCEMENT OF ORDERS – Recovery order – Where the mother makes an application for an urgent ex parte recovery order – Where the father has failed to comply with the final orders – Where the father has failed to return the child to the mother – Where the mother is due to change the child’s country of residence in compliance with final orders imminently – Recovery order issued.
Legislation:	Family Law Act 1975 (Cth) s 67Q
Division:	Division 1 First Instance
Number of paragraphs:	10
Date of hearing:	20 September 2024
Place:	Sydney
Solicitor for the Applicant:	Phillip A Wilkins & Associates
Solicitor for the Respondent:	No appearance by the respondent, ex parte matter

ORDERS

SYC 1826 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS KANTAWONG

Applicant

AND:

MR HILLSWORTH

Respondent

ORDER MADE BY:	CHRISTIE J
DATE OF ORDER:	20 SEPTEMBER 2024

THE COURT ORDERS THAT:

1.Pursuant to Section 67Q of the Family Law Act 1975 (Cth), a Recovery Order issues authorising and directing the Marshall and all Officers of the Australian Federal Police and all Officers of the Police Forces of all State and Territories of the Commonwealth of Australia to find and recover the child X born in 2017 (“X”) and return X to the applicant mother’s care by no later than 20 September 2024.

2.Liberty to relist the matter.

Note:  The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Ex Tempore 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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 a pseudonym, Hillsworth & Kantawong, has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

EX TEMPORE
REASONS FOR JUDGMENT

CHRISTIE J:

1. This is an urgent ex parte application for a Recovery Order.

2. The applicant is the mother of the child X born in 2017 (“the child”).

3. The parties have had lengthy proceedings before the Court, most recently an appeal finalised on 8 March 2024.

4. The current orders provide:

   1.Order 5 of the Orders of 5 September 2023 be varied so that while the child [X] born [in] 2017 (“[X]”) remains in Australia:

   a.[X] live with the father;

   b.[X] spend time with the mother, provided [X] and the mother reside with [Ms C in Region D]:

   i.        in week one from after school or 3.00pm on Thursday to before school or 9.00am on Monday each alternate weekend;

   ii.       in week two from after school or 3.00pm Thursday to before school Friday or 9.00am Friday.

   2.Order 4 of the Orders of 5 September 2023 be varied so that subject to compliance with Order 11 of the Orders of 5 September 2023 which is varied at Order 3 below, then no sooner than 16 December 2023 and no less than 14 days’ notice to the father, the mother be permitted to relocate to [Country B] and thereafter [X] live with the mother in [Country B].

   3.Order 11 of the Orders of 5 September 2023 be varied so that on a date prior to the mother relocating pursuant to Order 4 of the Orders of 5 September 2023, the mother will purchase a return ticket for [X] and a return ticket for herself between [Country B]  and Australia to facilitate [X] spending time with the father in the mid-year school holidays in 2024. The mother shall forthwith upon purchase provide a copy to the father and she shall be restrained from cancelling or changing that flight without the consent of the father.

   4.To facilitate Order 1 herein, unless changeover is to occur at school, changeover shall occur at [Town Z] Train Station.

   5.[X] shall have telephone communication with the mother each Tuesday at 5.00pm for thirty (30) minutes.

   6.Each parent shall facilitate telephone communication with the other parent if  [X] requests such communication at reasonable times.

   (Orders of 6 December 2023, Recitals 1 – 6)

5. Urgency arises in circumstances where the mother’s visa expires in September 2024 and her aeroplane tickets for herself and X are for travel tomorrow.

   LAW

6. Section 67Q of the Family Law Act 1975 (Cth) (“the Act”) provides:

   67Q Meaning of recovery order

   A recovery order is an order made by a court doing all or any of the following:

   (a)requiring the return of a child to:

   (i)a parent of the child;

   (ii)a person with whom the child is to live under a parenting order; or

   (iii)a person with whom the child is to spend time under a parenting order; or

   (iv)a person with whom the child is to communicate under a parenting order; or

   (v)a person who has parental responsibility for the child;

   (b)authorising or directing a person or persons, with such assistance as he or she requires or they require, and if necessary by force, to stop and search any vehicle, vessel or aircraft, and to enter and search any premises or place, for the purpose of finding a child;

   (c)authorising or directing a person or persons, with such assistance as he or she requires or they require, and if necessary by force, to recover a child;

   (d)authorising or directing a person to whom a child is returned, or who recovers a child, to deliver the child to:

   (i)a parent of the child; or

   (ii)a person described in subparagraph (a)(ii), (iii), (iv) or (v); or

   (iii)some other person on behalf of a person described in subparagraph (i) or (ii);

   (e)giving directions about the day-to-day care of a child until the child is returned or delivered to another person;

   (f)prohibiting a person from again removing or taking possession of a child;

   (g)authorising or directing a person to arrest, without warrant, a person who again removes or takes possession of a child.

   CONSIDERATION

7. This matter has been dealt with on an ex parte basis both given its urgency and given the mother’s fear that if the father were alerted to the fact that the matter is before the Court, he might take further action to hide the child’s whereabouts.

8. The mother is due to travel to Country B with the child tomorrow, in compliance with the final orders. In her affidavit, the mother tells the Court that X has not been in school this week and she has not been able to make contact with the father. The mother’s visa to remain in Australia expires on Monday.

9. The mother says that she spoke to X in the afternoon. X was due to come into the mother’s care pursuant to the orders yesterday. He did not attend school that day.

10. The mother’s solicitors have made efforts to contact the father. I was informed by affidavit today that X is not in the mother’s care as is required by the orders. Those orders were made having regard to X’s best interests and were confirmed by the dismissal of the father’s appeal. Accordingly, I consider that it is appropriate by way of enforcement of those orders that a Recovery Order issue. Ordinarily, I would provide the father with an opportunity to make arrangements for handover prior to involving the police but the circumstances of urgency in this case do not allow that, and accordingly, request is made that the police action this Recovery Order as soon as practicable.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Christie.

Associate:

Dated:       20 September 2024