MARIN & GUDELJ

[2020] FamCA 693

FAMILY COURT OF AUSTRALIA

MARIN & GUDELJ [2020] FamCA 693

FAMILY LAW – CHILDREN – RECOVERY ORDER – Ex parte – Where recovery order application in respect of three children – Application granted in respect of recovery order

Family Law Act 1975 (Cth) ss 66CC, 67T, 67U, 67V
Family Law Regulations 1984 (Cth) reg 23

Goode & Goode (2006) FLC 93-286

APPLICANT: Ms Marin

RESPONDENT: Mr Gudelj

FILE NUMBER: PAC 2718 of 2019

DATE DELIVERED: 21 August 2020

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 18 August 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr O’Brien

SOLICITOR FOR THE APPLICANT: Stojanovic Solicitors

RESPONDENT – SELF-REPRESENTED LITIGANT: No appearance

Orders Made On 18 August 2020

UPON HEARING MR O’BRIEN OF COUNSEL ON BEHALF OF THE APPLICANT MOTHER AND IN CONSIDERING THE APPLICATION ON BEHALF OF THE APPLICANT FOR THE ISSUE OF A RECOVERY ORDER IN THE CIRCUMSTANCES MORE FULLY SET OUT IN THE EVIDENCE BEFORE THE COURT, IT IS ORDERED THAT

1. Pursuant to s 67Q of the Family Law Act 1975 a recovery order issue directed to the Marshal of the Family Court of Australia, all officers of the Australian Federal Police and all officers of the Polices Forces of all the States and Territories of Australia requiring them to find and recover the children X born … 2009, Y born … 2011 and Z born … 2012 and to deliver the said children to the Applicant mother and for that purpose 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 children may be found.

2. Leave is granted to either party to re-list the matter on short notice by application to the Court in Chambers in appropriate circumstances.

3. Reasons for judgment to be delivered in due course.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Marin & Gudelj has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 2718  of 2019

Ms Marin

Applicant

And

Mr Gudelj

Respondent

REASONS FOR JUDGMENT

1. On 12 June 2019 the applicant mother commenced parenting proceedings in this Court by way of Initiating Application.

2. In that Initiating Application the mother, in summary, relevantly sought orders as follows:

   a)that pursuant to regulation 23(8) of the Family Law Regulations 1984 the Court receive evidence of an order made in the Country H in 2015 that provided for the subject children to live with the mother and for the mother to have custody of the children;

   b)that the mother have leave to proceed ex parte for the purposes of seeking a location order in relation to the children and a recovery order;

   c)that pending further order the subject children live with the mother;

   d)that a recovery order issue in relation to the children requiring the children to be returned to the mother;

   e)that an Location Order issue to Centrelink such as to furnish forthwith to the Registrar of the Family Court of Australia information relating to the whereabouts of the subject children.

3. The mother’s Initiating Application was subsequently amended and her Further Amended Initiating Application was filed on 16 October 2019.  The nature of the orders sought by the mother were not substantially varied.

Context

1. The mother is presently aged 39 years and the father presently aged 60 years.

2. The parties were married in 2009 and separated in July 2015.

3. There are three children of the parties’ marriage X born in 2009 and presently aged 11, Y born in 2011 and presently aged nine and Z born in 2012 presently aged eight.

4. Proceedings were before a registrar of this Court on 16 July 2019.  On that date, interim orders were made by way of a Location Order directed to Centrelink and an Location Order directed to the New South Wales Department of Education in an endeavour to locate the whereabouts of the children in the circumstances discussed below.

5. Information was subsequently received by the Court in response to the Location Order directed to Centrelink, now the Department of Human Services.

6. On 10 September 2019 proceedings were again before a registrar of this Court and inter-alia the mother was directed to file and serve any amended application by 17 September 2019.

7. The respondent father was personally served with the mother’s Initiating Application on 2 October 2019. 

8. The matter was again before the registrar on 15 October 2019 and there was no appearance by or on behalf of the respondent father.  On 15 October 2019 the applicant mother was granted leave to file a Further Amended Initiating Application with such application to be served on the respondent father by 21 October 2019.  Otherwise, the mother’s interim application for parenting orders was listed for possible hearing before the senior registrar on 31 October 2019.

9. On 31 October 2019 proceedings were before the senior registrar.  There was no appearance by or on behalf of the respondent father.  Proceedings were adjourned back to the registrar.

10. Proceedings were not again before a registrar until 12 February 2020.  The registrar noted that orders were made in Country H in 2015 for the subject children to live with the mother and for the children to spend unsupervised time only with the father.  It was further noted that shortly after the Country H orders the father left Country H taking with him the children of the marriage.  The mother’s application was further adjourned to 26 March 2020 on which date the registrar was informed that to the mother’s knowledge the father has now moved to Queensland with the children.

11. As a consequence of the father removing the children to Queensland, the mother by way of Application in a Case filed 13 May 2020 relevantly sought that a further Location Order issue to Centrelink (Department of Human Services) in an endeavour to locate the whereabouts of the children or the father and that a Location order issue to the Queensland Department of Education for the same purpose.  Those orders were made by the registrar on 11 June 2020.

12. Subsequently, on 10 July 2020 information was provided as a consequence of the Location Orders as to the whereabouts of the father and the children.

13. Such information was provided to the solicitor for the applicant in order to again effect service on the respondent father.  Proceedings were adjourned for the purposes of judicial case management to 18 August 2020.

14. On 18 August 2020 the applicant mother sought the issue of an ex parte recovery order, fearing that if the respondent father again became aware of the proceedings he would again spirit away the children to whereabouts unknown to the mother.

15. Having regard to the history of the matter discussed above and below, the applicant mother was granted leave to proceed ex parte for the issue of a recovery order and such orders were made on 18 August 2020. 

16. For reasons of urgency and expediency, reasons for such orders were to be delivered at a later date.  These are those reasons.

The mother’s evidence

1. Relevantly, the mother relied on the following documents:

   a)her Further Amended Initiating Application filed 16 October 2019;

   b)her affidavit filed 12 June 2009;

   c)her further affidavit filed 20 May 2020;

   d)the affidavit of Mr B, private investigator, filed 12 June 2019;

   e)the affidavit of Mr Stojanovic, the mother’s solicitor filed 13 May 2020;

   f)the affidavit of Mr C, process server sworn 3 October 2019, deposing as to personal service of documents on the father on 2 October 2019 as referred to above.

2. The mother asserts that during her cohabitation with the father she was subjected to domestic violence including verbal abuse and disparaging and derogatory abuse.

3. She asserts that the father has served periods of imprisonment as a consequence of violence to others and that the father’s registration as a health professional was suspended after he physically assaulted a colleague.

4. At the time of separation the mother left the relationship for fear of her life. She was unable to take the children.

5. Shortly after separation and on 24 July 2015, the mother made application to the Court of G City in the Country H for a divorce and orders that she have sole custody of the children and related financial orders.  For the purposes of those proceedings a report was obtained.  That report dated 6 August 2015 recommended that the children be restored to the care and custody of the mother forthwith.

6. In 2015 the Country H court, in proceedings where the father did not appear but his legal representative did, granted the mother a divorce, granted sole custody of the children to the mother, ordered that the children have contact with the father “in controlled conditions in the premises of J Centre every second week on Monday for a period of two hours” and made orders for the provision of financial support for the mother and children by the father.  The courts reasons for judgment reflect significant concerns as to the manipulative, dishonest, controlling and violent behaviour of the father.

7. The mother has not seen the children since separation in July 2015.  At the time of separation the children were aged six, five and three. The mother asserts that following orders made in 2015 the father has been placed on the “wanted list” by the Country H police. 

8. In July 2016 the mother was informed by the Country H police that the father and children were in Australia “somewhere in Suburb D”.

9. In 2017 the mother remarried with her new husband being an Australian citizen.  As a consequence of that marriage she was in November 2017 granted a provisional partner Visa that facilitated her moving to Australia to find the children.  On 12 December 2017 the mother arrived in Australia. 

10. The mother made ongoing enquiries in relation to the whereabouts of the father and her children but was not in a financial position to seek legal advice or commenced proceedings.  Subsequently, in March 2019, the mother and her new husband attended the Attorney-General’s Department in Canberra and also the offices of the Australian Federal police.  They were advised that the only way to possibly locate the children was to make application to this Court for orders.

11. The father has held a Country K passport in his own name and also holds an Australian passport in the name of Mr F.  The father obtained Australian citizenship in February 1999.

12. All of the children have previously held an Australian passport and are presently Australian citizens. 

13. Regulation 23 of the Family Law Regulations provides relevantly:

    (8)This regulation does not prevent a court that has jurisdiction under the Act from receiving evidence of an order made in an overseas jurisdiction (whether or not the jurisdiction is a prescribed overseas jurisdiction), being an order that:

    (a)deals with the person with whom a child is supposed to live, spend time or communicate; or

    (b)provides for a person to have custody of, or access to, a child. 

14. It is readily apparent that custody of the children reposes in the mother by reason of the Country H orders and that the children have been in effect abducted from the mother’s care by the father.

15. The primary urgent application is the recovery application relating to the children.

16. Section 67T of the Family Law Act 1975 (Cth) (the Act) provides:

    A recovery order in relation to a child may be applied for by:

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

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

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

    (caa)a person who has parental responsibility for the child under a parenting order; or

    (ca)a grandparent of the child; or

    (d)any other person concerned with the care, welfare or development of the child.

17. As to a recovery order s 67U of the Act provides that the Court may make such order as the Court thinks proper.

18. The determination as to whether to make a recovery order is governed by the provisions of s 67V, which relevantly provides that when deciding whether to make a recovery order in relation to a child, the Court must have regard to the best interest of the child as the paramount consideration. 

19. The best interests of the children, the subject of proceedings before this Court, are set out in the provisions of s 60CC of the Act. That section sets out the primary and additional considerations in respect of which the Court is required to have regard to.

20. The application before the Court is an application for a recovery order that is a parenting order.  The orders to be made in the context of the recovery order are governed by the provisions of the Act relating to the best interests of the child.  The relevant principles in relation to those provisions are set out in Goode & Goode (2006) FLC 93-286.

21. Section 60CC outlines the primary and additional considerations the Court must take into account in determining the best interests of the child.  Those considerations are relevant in the context of this application.

22. An examination of the considerations in the context of the Country H court’s orders and reasons for judgment are strongly supportive of the orders sought by the mother that would facilitate the restoration of these children to her primary care pending further order.

23. Orders will be made accordingly.

I certify that the preceding forty two (42) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 21 August 2020.

Associate: 

Date:  21 August 2020