Shi & Tien
[2023] FedCFamC1F 899
•12 September 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Shi & Tien [2023] FedCFamC1F 899
File number(s): MLC 10355 of 2023 Judgment of: STRUM J Date of judgment: 12 September 2023 Catchwords: FAMILY LAW – PARENTING – Where one child has been removed from the Commonwealth of Australia to the Country B by the paternal grandfather without the consent of the mother – Where Country B is not a party to the Hague Child Abduction Convention or Child Protection Convention – Where the child was removed from Australia with the father’s knowledge and/or consent – Where the second child remains living in Australia with the mother – Where both of the children are habitually resident in Australia – Orders made for the father to do all acts and things necessary to instruct the paternal grandfather to return the child to Australia – Recovery order to issue in event child is returned to Australia. Legislation: Family Law Act 1975 (Cth) ss 67J, 69E, 111CD
Hague Convention on the Civil Aspects of International Child Abduction 1980
Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children 1996
Division: Division 1 First Instance Number of paragraphs: 6 Date of hearing: 11–12 September 2023 Place: Melbourne Counsel for the Applicant: Mr Fudim Solicitor for the Applicant: Robinson Gill The Respondent: Litigant in person ORDERS
MLC 10355 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS SHI
Applicant
AND: MR TIEN
Respondent
ORDER MADE BY:
STRUM J
DATE OF ORDER:
12 SEPTEMBER 2023
THE COURT ORDERS THAT:
1.The Respondent father do all acts and things necessary and otherwise use his best endeavours to ensure the paternal grandfather returns the child, X, born in 2016 to the Commonwealth of Australia forthwith.
2.The Respondent father forthwith notify the paternal grandfather that the child, X, born in 2016 is to be returned to the Commonwealth of Australia forthwith.
3.The Respondent father file and serve a Response to Initiating Application and Affidavit(s) in support by not later than 4.00 pm on Tuesday, 19 September 2023.
4.Until further order the children, X, born in 2016 and Y, born in 2022 live with the Applicant Mother.
5.A Recovery Order issue authorising and directing the Marshal, 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:
(a)to find and recover the child, X, born in 2016 and to deliver the said child to the Applicant mother at D Street, Suburb C in the State of Victoria, or such other place as the Applicant mother and the person effecting such recovery agree to be appropriate; and
(b)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.
6.Pursuant to s 67N(2) of the Family Law Act 1975, the Australian Federal Police, Department of Immigration and Australian Border Force provide to the Registry Manager of the Federal Circuit and Family Court of Australia any information as to the location of the child, X, born 2016.
7.The Respondent father provide to the Applicant mother’s solicitor any information he has obtained in relation to the location of the child, X, born in 2016, including, but not limited to, the child’s travel itinerary and flight details of his return to the Commonwealth of Australia.
8.Pursuant to s67P of the Family Law Act 1975 any information provided to the Registry Manager pursuant to the location orders be provided to the legal representative of the Applicant.
AND THE COURT NOTES THAT:
A.All extant applications remain listed before the Honourable Justice Strum for Mention on 20 September 2023 at 9.30 AM.
B.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the fact sheet attached hereto and these particulars are included in these orders.
C.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
D.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.
E.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
F.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to notify the Judge’s Associate by way of email within 24 hours.
G.Section 67P of the Family Law Act 1975 provides that:
1.Information provided to the Registry Manager of a court under a location order (including a Commonwealth information order) must not be disclosed by the Registry Manager, or by any other person who obtains the information (whether directly or indirectly and whether under this section or otherwise) because of the provision of the information to the Registry Manager, except to:
(a)the Registry Manager of another court; or
(b)an officer of the court, or of another court, for the purpose of that officer’s responsibilities or duties; or
(c)a process server engaged by, or by an officer of, the court or another court; or
(d)with the leave of the court that made the location order:
(i)the legal adviser of the applicant for the order; or
(ii)a process server engaged by that legal adviser; or
(e)if a recovery order that consists of or includes an authorisation or direction described in paragraph 67Q(b) or (c) is in force--a person to whom the authorisation or direction is addressed; or
(f)with the leave of the court that made the location order:
(i)the Commonwealth central authority; or
(ii)a central authority or a competent authority of a Convention country.
Penalty: 120 penalty units.
Note: For the value of a penalty unit, see subsection 4AA(1) of the Crimes Act 1914
2.Nothing in paragraphs (1)(a) to (e) authorises the disclosure of information to the applicant for the location order.
3.In paragraph(1)(f):
“central authority” has the same meaning as in section 111CA.
“Commonwealth central authority” has the same meaning as in section 111CA.
“competent authority” has the same meaning as in section 111CA.
“Convention country” has the same meaning as in section 111CA.
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 Shi & Tien has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
EX TEMPORESTRUM J:
This is the second return of an application by the applicant mother, Ms Shi, that was filed on 8 September 2023 and was first returnable before me yesterday, 11 September 2023. The application has been brought in circumstances where the elder child of the marriage, X, born in 2016, was removed from the Commonwealth of Australia last week by his paternal grandfather, without the mother’s consent. According to what the mother has been told by the police, and according to what the father has confirmed in Court this day, the child is presently in Country B with the paternal grandfather. From what I have been told this day by the father, who is presently self-represented, the child was removed from Australia with at least his knowledge, if not his explicit consent.
These proceedings are still at a very early stage. I am not in a position to make any findings as to whether what the mother deposes or the father tells me from the Bar table is correct. What seems to be incontrovertible is the fact that the elder child was removed from the Commonwealth without the mother’s consent, and that should not have occurred. The younger child of the marriage, Y, born in 2022, remains in the mother’s care. The purpose of the orders I made yesterday and those I propose to make today is to regularise the matter, to endeavour to procure the return of the child to Australia, in circumstances where the Hague Convention on the Civil Aspects of International Child Abduction 1980 does not apply, given that Country B is not a party to that Convention, and then to consider the matter in a more orderly fashion on the next return date, being 20 September 2023, which is next week.
The balance of the orders that the mother seeks could not be made yesterday because there was insufficient evidence to satisfy me as to both children’s place of habitual residence. Having had the benefit of reading the mother’s affidavit filed last night at 8.51pm, as well as the matters which I have been informed of by the father, albeit from the Bar table today, I am satisfied that both of the children are habitually resident in Australia, and I therefore have jurisdiction to make the balance of the orders the mother seeks under s 111CD(1) of the Family Law Act 1975 (Cth) (“the Act”).
Insofar as the younger child, Y, is concerned, he is in Australia and therefore, pursuant to s 111CD(1)(a), he is both present in and, I accept, habitually resident in Australia. Further, pursuant to s 69E, the applicant mother is ordinarily resident in Australia and, on any view, was present in Australia on the relevant day, which was the day on which the Initiating Application was filed, namely, 8 September 2023.
In relation to the older child, X, I am satisfied that I have jurisdiction to make the orders sought, by reason of s 111CD(1) (e) of the Act, namely, the child is present in Country B, which is not a party to the Hague Child Protection Convention 1996. He is habitually resident in Australia and any one of paragraphs (b) to (e) of s 69E(1) of the Act applies to him, in particular, that a parent of his (the applicant mother) was present in Australia on the relevant day, being 8 September 2023, when these proceedings were instituted.
The balance of the orders that were stood over from yesterday to today are an interim order that, until the adjourned date, both children live with the mother; a recovery order in relation to X, in the event that he is brought back to Australia; orders pursuant to s 67J of the Act requiring the Australian Federal Police, the Department of Immigration and/or Border Force and the father to provide to the Registry Manager any information they have or obtain as to the location of X; and that any such information then be provided to the legal representative for the applicant mother. I am satisfied that, in the circumstances, those orders should be made. Whilst it is far from ideal that a recovery order issue, given the gravity of the matters that occurred last week, namely, the removal of the child by a non-parent without the consent of the mother but with the consent, explicit or implicit, of the father, in my view it appropriate that a recovery order issue in the event the child is returned to Australia.
I certify that the preceding six (6) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Strum. Associate:
Dated: 20 October 2023
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