Ismat and Ismat

[2007] FamCA 1131

FAMILY COURT OF AUSTRALIA

ISMAT & ISMAT [2007] FamCA 1131

FAMILY LAW – CHILDREN - RECOVERY ORDER – Order made for recovery of a 9 year old child in circumstances of the case

Family Law Act 1975 (Cth)

APPLICANT: Mr Ismat

RESPONDENT: Ms Ismat

FILE NUMBER: MLC 10313 of 2007

DATE DELIVERED: 14 September 2007

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Guest J

HEARING DATE: 14 September 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Cooper

SOLICITOR FOR THE APPLICANT: Randles Cooper & Co. Pty Ltd

THE RESPONDENT: No appearance

SOLICITOR FOR THE RESPONDENT:

Orders

1. That all relevant times be abridged to enable this application to proceed without notice.

2. That leave be granted for the filing of the application in these proceedings in the absence of a Marriage Certificate.

3. That until further order the child D (male) born … January 1998 live with the husband.

4. That the question of the wife’s spending time with the child be reserved.

5. That pursuant to Section 67(U) of the Family Law Act 1975 a Recovery Order do issue authorising and directing the Marshall, 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:

   4.1to find and recover the child D;

   4.2to deliver the said child to the Husband forthwith at the R residence in the State of Victoria or at such other place as the Husband and the person effecting such recovery agree to be appropriate; and

   4.3to 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 children may be found.

6. That all extant applications be otherwise adjourned to the Judicial Duty List for hearing at 10.00 am on 10 October 2007.

7. That the preparation of these Orders be expedited forthwith.

IT IS CERTIFIED

1. That pursuant to rule 19.51 of the Family Law Rules 2004 this matter reasonably required the attendance of a solicitor acting as Counsel.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 10313 of 2007

MR ISMAT

Applicant

And

MS ISMAT

Respondent

REASONS FOR JUDGMENT

1. This matter comes before me as an urgent application and comprises a Form 2 Application in a Case filed by the husband this day with all times being abridged for hearing.  There is also filed an Application for Final Orders together with an affidavit sworn by the husband.  I have read the affidavit of the husband which is both detailed and informative. 

2. The background is as follows.  The husband was born in January 1973.  He is 34 years of age and is a driver by occupation.  He commenced a de facto relationship with the wife in April 1996.  They married in June 1998 and, following unhappy differences between them, separated in January 2000.  There is one child of their union D who was born in January 1998.

3. The husband deposed that following separation with the wife, it was his understanding that she applied for a dissolution of the marriage in South Australia.  He is unsure as to whether or not there has been any previous proceedings in the court between them.  At the time of the separation they were residing in the B area.  It appears that the wife simply left without notice, removing the child with her.  He was then about two years of age.

4. Regrettably, the husband did not have any contact from the mother or with the child for some six months.  He deposed that following that period of time the wife telephoned him, advising she was living in Adelaide.  He travelled to Adelaide and together they reached agreement as between themselves that he would spend time with the child and otherwise speak to him on a weekly basis on the telephone.  Such an arrangement included his paying air fares for the child to travel from South Australia to Victoria for the school holidays.  However, following a short period of time, their arrangement was radically changed.

5. The wife agreed for the child to live with the husband, asserting that she could no longer care for their son.  Accordingly, he drove to Adelaide, collected the child and returned to Melbourne.  At that time, chronologically, the child was about three years of age.  The husband deposed that the child remained in his care for approximately 12 months.  However, the wife informed him she “had settled” and could look after the child.  Accordingly, he agreed for the child to return to his mother in South Australia.

6. Thereafter, the child remained in the wife's care for a further 12 months.  During this time, the husband continued to spend time with the child during the school holidays who generally travelled by air to Victoria.  Communication continued by telephone.  However, during the long summer holiday period of 2004, the wife again asked the husband whether the child could remain in his care.  In accordance with their agreement, the husband enrolled the child at the M Primary School for the commencement of the year 2005.  Since then, the child has continued at that school and remained in his father's care. 

7. The husband further deposed that over the last two years the wife has only sought to have telephone contact with the child on approximately two occasions each year, such is the measure of her interest in her maternal obligations and responsibilities towards her son.  It is clear, further, that she has always had the husband's telephone number and his mother's telephone number, and was thus in a position that, had she so wished, she could make contact with her son.

8. The husband deposed that the child is currently in grade 3.  He has his own room at home.  The husband lives in a three‑bedroom home with his new wife, whom he married in October 2005.  She is now pregnant with their first child.  The husband also deposed that the child has had some “behavioural” difficulties, and has been seeing a psychologist at school since enrolment. 

9. The sum total of the foregoing is that the wife has not physically seen the child for the last two years.  On a number of occasions she spoke to him advising that she was coming to Melbourne to spend time with him.  However, she never in fact arrived. 

10. On 10 September 2007, and unannounced, the wife attended at the home of the husband’s mother late in the afternoon, informing her that she wished to take the child to “McDonald's for tea”.  She said she would return him by approximately 8 pm.  At that time, the husband's mother telephoned the wife, who informed her that the child would be returned in "30 to 40 minutes".  The phone was then switched off.  There has been no contact since.

11. This is clearly a case in which a Recovery Order ought be made in the circumstances I have outlined.  I have been helpfully provided with a Minute of Proposed Orders by Mr Cooper, who appears for the husband.  I mark the Minute of Proposed Orders Exhibit “A”.  I will amend Exhibit “A” by adding after the word "that" in paragraph 3 the words "until further order".  I will add a further order that all extant applications be otherwise adjourned to the Judicial Duty List for hearing at 10 am on 10 October 2007.  I certify for the attendance of Mr Cooper.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Guest.

Associate 

Date:  24 September 2007.